T H E P O L I S P R O J E C T

3 D E C E M B E R 2 0 2 0 what happened in India's elections?

Art by: Siddhesh Gautam

S U C H I T R A V I J A Y A N I N C O N V E R S A T I O N W I T H POONAM AGARWAL / SRINIVAS KODALI / PRASANNA What Happened in India's Elections?

Indians went to polls in the 2019 general elections, with nearly 900 million people casting their votes. For over seven decades, India has held the largest democratic exercise in the world. However, over the past few years, many scholars, researchers, activists, and journalists have raised a series of concerns and questions about the election process. Has the system been rigged? On 12 September 2020, The Polis Project hosted a roundtable on Indian Elections with journalist Poonam Agarwal, independent researcher Srinivas Kodali, and lawyer Prasanna hosted by Suchitra Vijayan. In the following discussion, they address a series of issues including: electoral bonds, the vulnerability of the EVM-VVPAT machines, and the broader failures of institutions, both the Court and the Election Commission.

B y S u c h i t r a V i j a y a n

This transcript has been edited for length and clarity.

0 1 Electoral Bonds

- Poonam Agarwal

Electoral bonds are a promissory note introduced by the government by the late Finance Minister, Arun Jaitley. He presented these bonds with the promise that they will protect the identity of the donor. If a political donor wants to donate to a particular political party, he does not need to donate in cash. They can purchase the bond and donate it to the political party, which can then cash it. Second, (in his 2017 Budget speech, then-Finance Minister Arun) Jaitley claimed that the donors are scared of making political donations because they fear that they might get arm-twisted or threatened if other political parties get to know. So, this was the promise made by the government when the bonds were introduced. Now was it essential? Is an electoral bond protecting the identity of the donors?

I started working on this in 2018; the first tranche of the electoral bond was sold in March 2018. I went to the State Bank of India, the only bank that can sell electoral bonds, talked to the officials, and wanted to know more about electoral bonds. I was told that there is nothing on the electoral bond that would reveal the donor's identity, just the purchase date.

0 2 E L E C T O R A L B O N D S / / P O O N A M A G A R W A L

We purchased an electoral bond and found that electoral bonds have hidden, unique, alpha-numeric numbers. Why do you need a hidden alpha-numeric number on the electoral bonds? You cannot see the number while purchasing it; you can see it only under ultraviolet rays. I got to know this after the bond was sent to the forensic lab for testing. Now when these bonds are sold, they can be tracked. When donated to the political party, they can track the donor through the alpha-numeric number.

This was the secret policing that the government was doing: they never admitted this on record but instead claimed it was for security reasons. Apart from the unique alpha-numeric number, there are also watermarks on the bonds. The watermarks could tell you whether the electoral bond is genuine or fake. Technically there was no reason for the number; even the Indian currency does not have such unique numbers. We found no other promissory note, currency, or any other document that carries such a unique number. This was told to me by one of the former directors of the Reserve Bank of India.

A Public Interest Litigation (PIL) was filed, and later on, many Right to Information (RTI) request were filed. There were reports that the State Bank of India (SBI) was noting down these alpha-numeric numbers before bonds were sold to anybody. So, why did the government create electoral bonds, and more importantly, why are the names of donors who buy electoral bonds not revealed to the Election Commission of India? People have every right to know who these political donors are. But as per the with the Finance Bill (2017),(and the amendments made), the political party, in their audit report, need to mention the total amount they received through Electoral Bonds, but do not have to reveal the identity of the donor, which makes the entire political donation opaque and this is a big problem in any democracy.

0 3 Electronic Voting Machines (EVM) and Voter Verifiable Paper Audit Trail (VVPAT)

- Poonam Agarwal

Coming to EVM and VVPATs: my journey with this particular story started after the Lok Sabha Elections in 2019. I would like to give credit to one of my sources who had been helpful for my stories. He was the first person to flag that the votes polled data and the votes counted data of elections did not match.

It was not just in Lok Sabha elections, but the elections prior to that in Madhya Pradesh Elections and Maharashtra – the votes polled and votes counted data did not match. This is important for a simple reason: how can the Election Commission declare any result without getting the final numbers of vote counted and vote polled? The mismatch is a big question, to which the Election Commission never gave any clear answer. They just said that the process takes time, and they need to talk to several Returning Officers, send several data, compile them together, and only then the results are declared.

0 4 E V M A N D V V P A T / / P O O N A M A G A R W A L

The Electronic Voting Machines EVM and Voter Verifiable Paper Audit Trail (VVPAT) malfunctioning is another aspect. The RTI revealed that private engineers from a company based in Maharashtra were engaged by the Electronics Corporation of India Ltd. (ECIL). Now the Election Commission has always claimed that authorized engineers are engaged by ECIL and Bharat Electronics Ltd (BEL), which are the manufacturing companies of EVM-VVPAT. What do they mean by authorized engineers? Are they regular employees? Or are they contractual? They never clarified this, but they always maintained that authorized engineers have access to the EVM- VVPATs. These engineers have access to EVM-VVPATs at least six months before the elections because they need to do the first level checking. They are involved in counting, during the polling, and throughout the elections.

If they are engaging contractual engineers who are hired for one or one and a half years, aren't they making the entire election process vulnerable as far as the security of these EVMs and VVPATs are concerned? These engineers have complete access to this, and once their contracts are over, they are out in the world. They can do anything because they have complete knowledge of these EVM-VVPATs. Also, these engineers are not given proper training about EVM-VVPATs before they are engaged in any particular election. So, these are significant issues, and the Election Commission has never given a clear answer. We have repeatedly been asking about it.

0 5 EVM and VVPAT manipulation

- Poonam Agarwal

The last thing that I would like to speak about is the EVM- VVPAT manipulation. There is a "ballot unit," and there is a VVPAT machine that shows the slip, which indicates whether your vote has gone to your candidate or not. The wiring of the EVM and VVPAT machine is such that once you press the button on the ballot, the vote first goes to the VVPAT, the slip comes out, and after that, it goes to the Control Unit where your vote is recorded. Now, the vote that is counted on the counting day is from the Control Unit.

0 6 E E V M A N D V V P A T M A N I P U L A T I O N / / P O O N A M A G A R W A L

When VVPAT was introduced, the Control Unit would record the vote first, and not the VVPAT machine. This was clarified in the Court. But that is not how it works. There should have been either a parallel wire going, one from Ballot Unit to VVPAT machine, and another to the Control Unit, but this is not the case. The former IAS officer Kannan Gopinathan has written to the Election Commission. Till this day, he has not gotten any reply. It has been one year so far.

These are important questions and concerns about which I have been reporting, and I will continue to report. I would like to mention that the Election Commission is supposed to save and store the VVPAT slips for one year, but they destroyed it within four months. And this is something we got to know through an RTI to which the Election Commission has not given us an answer yet.

0 7 Digital Colonization of Data

- Srinivas Kodali

In India, the election process is increasingly becoming digitized. when you buy the electoral bonds, you also submit your Aadhar, your digital ID. While the State collects a lot of information about you, they are increasingly making it non- transparent for the citizens. From the outside, you have no idea what's happening – whether it is hiding the private players or even what is the Election Commission of India's (ECI) role in regulating all this. The primary reason for this is that the ECI as a body only comes up during the elections. It's not a full- time entity.

After Cambridge Analytica's revelations, we know how social media and algorithms influence elections. You don't need to manipulate VVPATs. But it is a known fact that manipulating voters is an attack vector. We have seen it happen in the US Elections. We have seen it happen in the Brexit Referendum. The 2019 Indian Election was the first elections post- Cambridge Analytica, where we knew for a fact that manipulation of voters through social media was going to happen. Now, there are different ways one can go about manipulating voters. You need to micro-target them. ( Social media platform)are trying to essentially sell ads or sell your campaign to each voter in a different way. And because of how social media marketing happens – it is advertising essentially;

0 8 E D I G I T A L C O L O N I Z A T I O N O F D A T A / / S R I N I V A S K O D A L I you never know who is being targeted and what ads they are showing. Facebook and Twitter did share information about who were the advertisers, there is enough evidence to show that there are bots and entities promoted by a political party to micro-target voters.

Now the Election Commission's role in regulating the election, including the publicity of the election, is under Section 126 of the Representation of the People's Act. Section 126 of the Representation of the People's Act is dated and only looks at controlling print and visual media. To issue an ad for print, newspapers or TV, you have to get the Election Commission approval. So, before elections, all of your material is shared with the Election Commission. You get pre-approvals. There is a regulated process, but we have no idea what the Election Commission had done about Cambridge Analytic regarding social media.

The parliamentary committee on IT tried to listen to several experts, but we have no report. The ECI was supposed to have some internal meetings. Yet, there is no evidence whatsoever or what decisions they took.

0 9 E D I G I T A L C O L O N I Z A T I O N O F D A T A / / S R I N I V A S K O D A L I

In 2018, the Sinha Committee was constituted. Senior Deputy Election Commissioner Sh. Umesh Sinha produced a report on regulating social media entities under Section 126 of the People's Act's Representation. That's an interesting report because in all the consultations the Election Commission had with the social media entities, they eventually ended up allowing social media entities to self-regulate. The interactions of the Election Commission with some of these social media companies happened via the Indian Internet and Mobile Association of India (IMAI). So, in the 2019 elections, the arrangement was that the Election Commission would let these platforms know if there was hate speech, and each forum would voluntarily bring them. But there were no orders. Roughly some thousand URLs were removed.

While the Election Commission never published the report of Mr. Sinha Committee, the arrangement that Facebook and Twitter are going to self-regulate was widely publicized. But we have no idea what conversations the Election Commission had with Facebook or Twitter. The third-party communication rule was invoked. Under this rule, the Election Commission cannot share such communication with people under the RTI Act. This is very strange because the entire communication that the Election Commission has is a public activity. Whether you have it with a government department or with a private entity, it doesn't matter because you are doing a public function. And as part of this public function, you are required to be transparent. Yet no information was supplied.

1 0 Voter Deletion - Srinivas Kodali Another trend in the 2019 elections was voter deletions. It's not just micro-targeting of voters. When you realize that you can't manipulate voters, you remove them. And removing voters from the rolls is not new, it is an ancient method used by Indian politicians. There are various methods that political parties have used. What's tricky now is that after Aadhar was linked to the voter ID, the government claimed that many duplicate voters have to be eradicated. In 2015, the Election Commission linked voter IDs with Aadhar, and in doing so, it erroneously removed lakhs of voters across the country. My home state of Telangana had voter deletions of approximately four million. In December 2018, during the State elections, and before the upcoming Union elections in 2019, people across the state came out on the streets in lakhs and protested. But there was no investigation by the Election Commission.

In the 2019 elections, every party, even the right-wing parties, were complaining. The Bharatiya Janata Party’s (BJP) Member of Parliament from south Bangalore complained that his voters had been deleted. Voters have been deleted because it was a machine trying to de-duplicate voters. They never followed the rule of law. By the book, if you have to delete someone from the voter list, you have to send a notice under the Representation of the People's Act, then verify and have public hearings. The Election Commission bypassed all that. Even when complaints got to the Commission, the Commission didn't act. Because they realize what the problem was and what they had done. But they don't want the Commission's image to become negative. It's making it harder for people to investigate and access to these digital platforms is becoming harder.

1 1 Relationship between Delimitation Commission and National Population Register

- Srinivas Kodali

The Ministry of Home Affairs is now appointing Delimitation Commissions for the North East and Jammu and Kashmir. Except the Election Commission constitutes delimitation commissions, and there is no role of the government in this. But now, in the case of Kashmir, the Ministry of Home Affairs has constituted the committee. I think they also announced the committee for the North East.

They are trying to bring a law because they realize that there is an issue. That's important because it will take away powers from the Election Commission on delimitation, and it will give it to the government.

This has severe implications and huge data collections that the government plans to do with the Population Register (NPR). It is very much more comfortable for the government to collect data through census and then target the voters and the population.

Traditionally political parties have brought their welfare politics into governance. To cater to the voting population, they announce welfare schemes when you are in the government to target their voter-base. Now that data is circulating between political parties through the government;

1 2 D E L I M I T A T I O N C O M M I S S I O N A N D N A T I O N A L P O P U L A T I O N R E G I S T E R / / S R I N I V A S K O D A L I and it is going back to political parties. And by increasingly tracking everyone using their unique IDs, digital IDs, this process has essentially become easier. Every party is doing it.

One of the political parties in Andhra Pradesh, the Telugu Desam Party, was caught with the entire state's population's welfare data, AADHAR numbers, Voter IDs, photographs. The opposition party filed a complaint with the Election Commission. It was the YSR-Congress party which won the Election. It doesn't mean if you have access to data, you can win the Election…but it can be used to manipulate and win the Election. But using the data gives you an edge, and everyone wants to have access to it. It doesn't matter who is in power. Everybody is trying to buy this data, steal it in whatever way possible, or collect it.

With the pandemic, we know that it will be tough to have an election in the near future. And also, to allow migrant voters to vote from their area of residence instead of migrating or traveling back to their constituency to vote for the day. They are trying to experiment with this blockchain-based voting. Frankly speaking, all of this is a nightmarish scenario because none of these systems are transparent, and you need each of the election procedures to be transparent at every stage. Not just at the end, at the counting, or only at the voting. Digitization makes it less transparent, and it gives away control from the citizen. It is also giving away control from the Election Commission, and it's giving control to the government.

1 3 Institutional fairness and accountability

- Prasanna S.

Why is it that many of the stories that Poonam and others have reported have not found their way to the mainstream press? One of the obvious reasons is that if the press don't ask the right questions, they will never have the correct answers. We have to look at the questions that the Indian press asks now in the broader context of a march towards traditional fascism that we have seen of the affairs of the Indian State, where one of the punctuating attributes of such a movement is this constant shifting of the burden of proof.

Wherever all these questions of VVPAT slip count not matching, the poll count etcetera are raised, it is almost always the case that you have an army of journalists coming out in support of the Election Commission, saying "where have you got any proof that there is any tampering of elections? Have you got any proof?" That is a very low threshold for the Election Commission to satisfy.

In my mind, there are four thresholds. The broader principle here is that the elections should be neutral and should also be seen as free and fair.

When you are operating at tier one you are saying that there isn't adequate proof that the elections have been compromised or manipulated, particularly when technology is adopted. You say there is no proof that the EVM machines are tampered .

1 4 I N S T I T U T I O N A L F A I R N E S S A N D A C C O U N T A B I L I T Y / / P R A S A N N A S . with, or the VVPATs are tampered with. No election is compromised.

The second one is for the healthy skeptic to comment, to say there is no credible election that is not “tamperable.” This is to say, you need to satisfy a reasonable skeptic that it is not “tamperable.”

The third level is where experts agree that with the technology of today and for eternity, the process is sufficiently secure. That is, the results are fair.

The fourth level is where even a reasonable layperson can satisfy himself that the elections' outcomes are fair, and the general conduct is also free.

The Indian State now under the Indian Constitution, and judgments by the Supreme Court, has moved from a culture of justification to a culture of authority. When we ask the State questions, whether it be the Election Commission or the Indian government or even the Supreme Court, we never get justification. We always get a culture of authority. I have noticed in litigations around the Election Commission that in all its responses the line it takes is: "We are a constitutional body under Article 324. We know how to do our job. People don't have to tell us how to do our job. We are an independent body. Several Supreme Court judgments have recognized the job that the Election Commission has done for a country of India's size, and therefore we will need to rely on all these accolades for some more time. How is it that you ask all these questions?"

This is the line that they took even during our litigation. The legal threshold is much higher to reach for a petitioner than, for example, a public issue for a press, but it's the reverse in

1 5 I N S T I T U T I O N A L F A I R N E S S A N D A C C O U N T A B I L I T Y / / P R A S A N N A S . this case. So, the Courts had given a series of orders, for instance, in 2009, when electronic voting machines were used in the General Elections across the country almost for all elections. Subramanian Swamy went to Court, saying that this is not transparent. We need VVPAT and the Supreme Court in 2013 ordered that there was no harm in adding this additional step. Grudgingly, the Election Commission had to implement the VVPAT. Once they implemented the VVPAT, they were adamant that they would not count the slips. So, what was the point in actually implementing it?

The Election Commission said that the Supreme Court only asked to implement VVPAT; they never asked to tally the count with the electronic counts. And that started another round of litigation. In 2018, several petitions were filed asking for a tally of the paper trail counts with the electronic counts. Many of them were dismissed. Thankfully for the petitions that we filed in January 2019, a notice was issued. At last the Supreme Court decided to hear it. Part of the reason was that our petitioners, MG Devasahayam and others, had conducted elections as Returning Officers themselves and had a history of engagement on this issue with the Election Commission. Therefore, the Supreme Court was forced to hear these matters, and we had a summary hearing for about seven minutes.

How much tallying of the VVPAT count should be done with the electronic counts? There is always suspicion that there is digital manipulation of elections. To alleviate this concern, how much of it should we count? The Election Commission's stand is that it was enough if we count the VVPATs of one assembly segment in any given constituency. One polling booth in any given assembly segment and an average assembly segment has about 250 polling booths. They said we will do one per polling booth, that is sufficient.

1 6 I N S T I T U T I O N A L F A I R N E S S A N D A C C O U N T A B I L I T Y / / P R A S A N N A S .

They relied on a particular report given by three independent scientists. One of them was associated with the Indian Statistical Institute (ISI). They presented this report to the Supreme Court, belatedly and as an ISI report. The Indian Statistical Institute however was never officially engaged by the Election Commission.

Three scientists from the ISI Delhi and one from CMI, the Chennai Mathematics Institute, wrote the report. And one of the premises was that the entire India Election is one process, a homogenous event. The report did not follow the rigors of the executive process within the Indian Statistical Institute.

Therefore you check 479 EVMs, amongst the thousands and lakhs of EVMs are used across the country. And even this recommendation was not taken by the Election Commission. They instead watered it down to be one per assembly segment. People who know how statistics works know that 479 out of a larger number is not the same as 1 out of 250 1.

So, this is how the report was presented – that it had the backing of the Indian Statistical Institute and therefore it was sufficient. Despite that, the Supreme Court’s official line is that there have to be five polling stations randomly chosen for every assembly segment and the VVPAT counts have to be tallied.

I volunteered to be a counting agent for an independent candidate in the recently concluded Delhi Assembly elections. I went and saw how is it that this particular tally was done. The question of the polling booths' random selection is also something that the counting agents are not a party to and other election agents were also not shown that. So, I don't know under whose watch these particular lots were picked. The lots may be picked, and there is no question about whether it was a fair process. 1 7 I N S T I T U T I O N A L F A I R N E S S A N D A C C O U N T A B I L I T Y / / P R A S A N N A S .

We saw this tallying done; it was just impossible to count these small VVPATs slips. Every time you count, you always end up with fifteen more or fifteen less. There was not once it tallied. They are so small and challenging to count – and that is why the Election Commission has been resisting all along for all these verifications. Therefore, we suggested that it needs to be a proper ballot and then the counting happens. To be statistically significant, at least 30 percent of the polling stations in most assembly segments have to be tallied. So that is the Election Commission, VVPAT litigation saga.

1 Editor explanatory note: The report considers all the EVMs of India to be a single 1 8 population, among which defects have to be searched. India does not have a presidential system of elections. Instead, people choose representatives in each constituency to send to Parliament. According to an Indian Statistical Institute report to the Election Commission of India, 479 EVMs should be randomly checked with VVPAT for statistical quality-control. Voter Deletion - Srinivas Kodali The other larger issue as why there are so many questions against the Election Commission is that it does not keep with the expectation of being a non-partisan institution.

So, there are structural issues for this. When digitization of elections happens, the Election Commission's control over the process is reduced even more while its dependence on the government increases and the government is a partisan organism. As far as the elections' process is concerned, the government is a partisan organism, and being dependent on the government means that there are horror stories – like in the US. For instance, in Florida Governor DeSantis himself was also the person who conducted the Florida elections. And similarly, in Georgia it was widely believed that Stacey Abrams had won the governor elections. It didn't go that way, despite the exit polls showing that she'd have the upper hand in 2018.

When the government is in charge of elections, any process, structure, or sub-process, you will have this problem: the Election Commission's structural control will be diluted. There are other pending structural issues of the Commission. The government appoints the Chief Election Commissioner. The person who holds the office currently is Sunil Arora – in any other era, if he had been appointed, it would have raised a lot of eyebrows as he was involved in the Radia Tapes and has documented links with the Sangh.

Regarding election commissioners' independence the problem is that they don't even have, for example, the constitutional protection against removal.

1 9 Q & A

S U C H I T R A We have a lot of questions coming in. One of the V I J A Y A N : first questions that came in was for Poonam. Do you feel safe reporting? Have you had threats? Why are you one of the few handfuls of journalists reporting on this, and why others are not reporting?

P O O N A M I started my career 15 years ago in investigative A G A R W A L : journalism. There were threats in the past, and I was given security . But now, the concept of threat has changed. It is not a physical threat anymore, nor will I get some call and "tum ko uda denge" types. It is not that anymore. The biggest fear that a journalist these days is facing a criminal case. That is why journalists are quiet, because we understand that we do not have legal support for legal cases. Legal threat is a major threat that journalists are facing today. And that's one of the tools used by the government and the administration to keep you quiet. And I have already faced criminal charges. So anytime I do any story, I check with ten sources. I call Prasanna, and I get Srinivas if there is any technical issue or legal issue. I call other lawyers and other sources just to be correct about what I am writing. This is something I have always done, but I'm doing ten times more now – be it elections, be it electoral bonds, be it PM Cares or

2 0 anything. This is one threat I feel most of the journalists who are doing their job are facing. As far as the physical danger is concerned, if anything goes wrong with me, there would be people who would go ahead, put questions out in the public domain, and take up my issue. So physical threat is something I am not worried about.

P R A S A N N A I can answer from the perspective of the lawyers S . : as well. This kind of chilling effect is there among lawyers, particularly after the Bhima Koregaon arrests. There was a line that was breached. It was always understood that lawyers are safe. There are not going to be UAPA charges on lawyers. So, of course, lawyers will be representing clients of all kinds. In many ways, when Sudha Bhardwaj was arrested it was a first, which certainly caused a chilling effect. That is now slowly being reinforced with what is happening with Prashant Bhushan. The Supreme Court itself is looking to use the contempt powers. This chilling effect is there for lawyers, is there for journalists, and it is only getting worse.

S R I N I V A S So, One thing I think I didn't touch upon when I K O D A L I : was talking about data and elections was surveillance. We are looking at voter profiling, not looking at state surveillance in the Indian elections. The Indian State is listening to everyone. Enough people have documented what 9/11 had done to surveillance in the US and across the world. But there hasn't been enough discussion and enough documentation of what the Indian State has done post-Bombay attacks and

2 1 the rise of surveillance structures, including Aadhar for the population. Now, as someone who got into all of this for questioning Aadhar, the first thing that happened to me was legal suits, which promised to put me in jail. I was documenting Aadhar leaks, and the threat happened. I got a taste of it, but I was never taken to the Court. I'm not sure when that will happen again, but that threat looms over. Most of us do fear that we are under surveillance, that the State is tracking us. It is not just the policing establishment; it is the bureaucrats themselves. For example, before the voter deletions in Telangana, I was all over Twitter, saying that people will not be able to vote on the day of the Telangana elections because of the numbers showing a decrease of voters up to 4 million. Mr. Ajay Bhushan Pandey, the CEO of The Unique Identification Authority of India (UIDAI), went on live television on two TVs – NDTV, CNBC - and said: “If there were voter deletions it is not our problem, it is the Election Commission's problem. Don't blame Aadhar.” He knew it was going to happen. I was very surprised that the CEO of UIDAI was making these statements. There were no letters, nothing happened. I was just tweeting that. So, yes, the bureaucrats, the state machinery is always tracking you.

P R A S A N N A I will just add one line to the delightful story that S . : Srinivas just shared. After the elections, the following day, the Chief Electoral Officer of Telangana came and apologized on TV for all these tensions. Up until election day, the Election Commission was in denial, and the following day, they came and apologized on TV.

2 2 S U C H I T R A If the votes polled in and the votes counted didn't V I J A Y A N : match in any elections, how credible are the Indian election results?

P R A S A N N A That's a fair question. I saw that as a counting S . : agent; it almost never matches. It can never match because every time you count, you get a different result. The same set of VVPAT slips – it is impossibly humanly to count those small slips. They stick to one another; it is impossible to know whether they are actually separated or stuck together. So, I mean, this whole process of tallying the VVPAT slips is a farce. We need better slips. We need to implement the whole thing better.

P O O N A M The votes are not matching, and the Election A G A R W A L : Commission is hell-bent on proving their point that the entire process is fair, and that there is no need to tally the VVPAT and the Control Unit electronic votes. Why have the VVPAT? Moreover, the ink doesn't stay there for long. On this particular aspect as well, the Election Commission did not come out with a clear answer. For how long does the ink on the slip stays? We do not know. Why so much opacity? Why can't they be more transparent? And the Election Commission is supposed to transparent to conduct a fair and free election in the country.

S R I N I V A S I have been tracking digital software systems that K O D A L I : the Election Commission uses. For example, they have claimed that CCTV cameras are installed in all polling booths. It is only in the polling booths known to have instances of disturbances. If you

2 3 talk to the government, they'll tell you that less than 10 percent of the polling booths will have those CCTV cameras. Legally, under the Election Commission rules, up to 45 days after the Election, anyone including the political party can file an RTI and see the polling booths’ video footage. I filed one for India's largest constituency, Malkangiri. I was asked to supply 10 lakh rupees for around 84 terabytes of data of the CCTV footage. So, what the Election Commission claims versus what is on the ground is completely different. It is not a single monotonous activity because bureaucrats, bureaucracy, states function differently across the country.

S U C H I T R A This brings us to another question, a handful of V I J A Y A N : technocrats in India now are pushing for the implementation of these systems that are deeply flawed and hiding behind the language of technology, AI, and blockchain. How do we hold these technocrats responsible? How do we make this information more accessible? We have people who have made money, who are on NDTV being interviewed about a series of issues they have no skills about, and yet they are seen as the pundits. How do we hold technocrats accountable, and how do we demystify the language of Aadhar?

S R I N I V A S In post-liberalization in India, there is an evident K O D A L I : lack of difference between the State and capital. When we talk about these technocrats, it's not that these technocrats are poor technologists working in some software company. These people are rich co-founders of companies. You can't look

2 4 at them merely as programmers or software engineers. Now the question is, how do we make these people accountable? I think the mechanisms that you have in a democracy to hold the state accountable here do not exist.

In the case of Aadhar, marketing terms were introduced to confuse people. The set of people who got confused the most are the political parties. No political party questioned what Aadhar is. To be very frank, nobody knows what it is.

Many things are being pushed in India, and the closest resemblance to what's happening in India is Estonia. Estonia is a post-communist nation that got out of the Soviet Union and digitized itself over a few years. It has a digital id, a smart card; it has digital voting and digital health records. Estonia's population is probably ten percent of Delhi or Bombay. You can't experiment, copy whatever has happened in a different country, and paste it in India, just so that you can make money. All these people who are pushing these systems want to make money because it is the private sector that has to supply them. It is not like the Government of India is building the blockchain. It will be some private entity which has to supply these systems when the need arises.

The push for digitization in India generally (not limited to elections) is to convert citizens into users by putting technology between you and the State. You can't directly interact with the government anymore; you have to go through a

2 5 digital device, whether it's an EVM or Aadhar, to access welfare. There is always an intermediary called technology that has been placed in between you and the State. And this intermediary is controlled by the capital, by the market. So, the market has essentially taken control over the State, placed itself between you and the State. And now we are unable to question either the market or the State. And the only way now is to question political parties. We need political parties that are open to the questioning of institutions. Even the Courts have said there is an obvious problem. So was the National Population Register (NPR) – none of the final judgments talk about it. Now the Election Commission wants a new law to link Aadhar and Voter id again.

P R A S A N N There is a lot to unpack. It goes back to the A S . : question of accountability of all the people who are now pushing these technologies on several fronts in the garb of being volunteers. If a State has tendered this work to a particular service provider, then it can be audited, we can litigate that. The language for that in the law is clear. But when somebody is volunteering for the State and then effectively forces the State to take a certain cause – we don't have the law's language to push back against that. This lack of law's language was one thing that we had a problem with Aadhar. They say we are volunteers; we are just working for free. But there is also state largesse in you being in the bureaucrat's ears all the time and having direct access to the government; this is state largesse and has to be equitably distributed.

2 6 It can't be just granted to a few people on a platter, and that's what effectively is being done. One group of lobbyists is effective in the government's ears, enforcing a particular imagination of how a country should run. Therefore, legal academia also needs to work to define the language to push back against it. We don't have one.

S U C H I T R A A really interesting question that has come up: of V I J A Y A N : late India has seen a rise of an intermediary or an entrepreneurial class made of people like Prashant Kishor. They often make vast sums of money based on electoral mining data. How do you reconcile the host of political entrepreneurs within the Indian electoral process? How fair is the Indian system when someone like Mr. Kishore, who advises a series of political parties across ideological spectrums, apparently has access to data collected? Is there legislation to regulate this? What can we do?

S R I N I V A S It's the money that allows it. Electoral Bonds have K O D A L I : technically given them rocket fuel to corporatize Indian elections. The trend we are seeing is essentially an MBA class, a set of consultants who essentially realized an entire market called Indian elections where political parties spent thousands of crores to win. That's what has happened in Cambridge Analytica. They are not different in any ways. So, we must question the Election Commission on that more than asking Prashant Kishore. Forget Prashant Kishore, forget Mr. Nilekani, forget Mr. Zuckerberg. The Election

2 7 Commission is required to implement the Representation of People's Act requirements, and it is not implementing it. When it comes to Facebook, they are allowing them to self-regulate. When it comes to Aadhar -voter id, they allow the UIDAI to do whatever they want – delete voters without implementing the People's Act's Representation. And even in the Electoral Bond case, the entire Act itself is illegal because it was a Money Bill.

We must take back institutions, demand accountability from institutions that have several structural issues. I would recommend that you read Ornit Shani's book, How India Became Democratic because she documented what was happening in India in 1947. When India became independent, we started listing everyone in electoral rolls. We face the same set of issues now — whether it is delimitation, whether it's voter deletion, not including minorities, NRC, and D- voters, all of these issues happened in 1947. We are just going back in time. The only way to do this is how citizens had engaged with the State then. It is beautifully documented – you have to organize, keep on sending them letters, question them continuously, and questioning Prashant Nilekani or Prashant Kishore won't help.

P R A S A N N A Just taking off from there. One of the structural S . : issues is that we have all of these single-point failures. Election Commission is a single point failure. It's not federated enough, which is why you have somebody like Prashant Kishore, who can

2 8 say he has one source to get all of his data potentially. If there were independent processes across several states (it might be more expensive certainly because we will lose economies of scale), there would be no single points of failure. This is something that we need to talk about. I mean much like how when you say market failure, you break up companies; in state failure, you may need to break up certain institutions. If our election process is failing from the top, we may need to break it up.

S U C H I T R A The next question is: why are Electoral Bonds V I J A Y A N : unconstitutional? How much time will the Supreme Court take to take up the Electoral Bonds issue? Why isn't every newspaper and television reporting on these issues regularly to hold these institutions accountable?

P R A S A N N A On the unconstitutional bit: there are very few S . : open and shut constitutional cases, and electoral bonds are one of them. As to funding elections, transparency in the electoral process is the bedrock of our electoral democracy, and democracy is declared to be a basic feature of the Indian Constitution, which constitutes its basic structure. So, anything that compromises the nature of our democracy is destructive of the basic structure. Electoral bonds are one of the cases where the Supreme Court has decided by not deciding. They have let one General Election to run, and several state elections run. This is judicial evasion, as Gautam Bhatia has put several times in his writings. They have evaded answering

2 9 this question. These are uncomfortable questions that they have to answer, but they have just evaded it. It only reinforces the mood of gloom that we are seeing. But we don't know whether it will be taken up at all before the 2024 elections.

P O O N A M I am not as hopeless as Prasanna. I hope that it A G A R W A L : will come before the 2024 elections, but this is an important issue. It has been reported in some sections of the media, not the mainstream media, but it is an important issue. Whether media picks it up or not, when a public interest litigation (PIL) has been filed before the Supreme Court, they are supposed to work on it, hear it, and pass judgment. But it is pending, and we are all not surprised. Since the Bihar elections are around the corner, another tranche of electoral bonds will be sold in October 2020. As far as the government is concerned, they are going ahead with their process. Nobody is going to stop them. But the Supreme Court is just not ready to work on it. Now the only place where we can go and place our grievances and expect some result is the Supreme Court. If the Supreme Court is not hearing us then as a citizen of this country, we do not know what to do. And this is one thing I have been discussing with the Association for Democratic Reforms (ADR group) who have filed the petition in the Court.

They are equally upset. They are similarly hopeless that they do not know how to go ahead and make this matter come up for hearing. And this is one issue none of us can answer, and as Prasanna rightly said, we do not know when and how it will happen.

3 0 We are all concerned that mainstream media is not picking up the issue. When I first reported Electoral Bonds in 2018, there was a lot of effort to explain the issue to the people. They couldn't understand the issue, so we did a series of stories to understand what precisely Electoral Bonds are and why we need to notice this issue. Questions were being raised as to why the opposition is not bringing up the issue. Why are they not talking about it if it is such a big problem? I could only answer that it is the opposition which is supposed to decide. Whether they can understand or not, I doubt. As journalists, we also learn that we understand the issue, then address it, put it in the public domain, and keep working on it. Thankfully many of us are aware of it, but mainstream media do not want to pick this issue.

When I claim things, I am doing that based on a government institution's documents, and I am sharing these documents with the press. When I interact with the media, when I try to get this out – the press rarely wants to look at the documents even when you share them. I will not entirely blame it on the media as there has been a lack of will from the political parties also to investigate. When you look at voter deletions in Andhra Pradesh and Telangana, they knew lakhs of voters had been deleted since 2015. They have approached the Courts, multiple cases have been filed in the Hyderabad High Court. The cases were being heard, but there was no evidence. There were claims on either end that deletions happened. They were wrong deletions. The

3 1 S R I N I V A S Election Commission would claim that they had K O D A L I : done everything by the book, but nobody put the effort to inspect the documents to see what happened. Eventually, when I put out the evidence, the media was not ready to report it until a politician took up the issue. The only question the media would ask me was: what is your credibility that we should hear you or publish whatever you say? I'm like, no, don't publish me, but publish whatever these documents say. These documents are produced by the Election Commission of India and the Government of India. So that idea of evidence, of critical thinking has been lost; media, politicians, and other institutions are equally responsible for it. We probably have to explain these terms at a very fundamental level, as Poonam was pointing out. Like the Delimitation Commission issue, nobody understands the full complicity of Aadhar, NPR, Delimitation Commission, and voter deletions.

Several independent laws govern all these, but all these laws are instituted by the same institution – India's Government. It's a centralization of power, money, and institutions that we cannot explain because these are not tangible issues. For a Muslim – I'm bringing this community up because of the NRC issue – it was apparent only after Assam what they could lose. That they would be detained and sent to jail. It's tough to explain to the public until it becomes a tangible issue.

P O O N A M I just want to add that these are complex issues, A G A R W A L : Electoral Bonds, CAA, NRC and a common person finds it hard to understand. So, as media, we do

3 2 our job, but at the same time, the opposition also needs to do their job - talk to people, pass on the message. A weak opposition is also to a great extent responsible for this problem.

S U C H I T R A We have got a series of questions about what can V I J A Y A N : the common man do? What can someone who is not a lawyer, journalist, or researcher do?

P O O N A M We need to discuss issues. We need to bring to the A G A R W A L : people the problems that matter to each of us and create awareness. That's how we can contribute from our end. If Poonam knows the issue, she can write and publish it on some platform. But if person “A” also understands the same problem and is scared, he/she should go ahead and create awareness amongst the people in their surroundings. As a citizen, that would be a big help. We do not need to be a journalist; we don't need to be a lawyer. All we need to become is an aware citizen.

S R I N I V A S I think what has essentially happened is that K O D A L I : political parties have become weak because of their structural issues, how they were undemocratic, to begin with. The only way to challenge the state is to Stop it from taking away your power and not try to give it away to political parties but probably unionize. Unions are powerful. Religious institutions are powerful too. These institutions, these religious organizations, they haven't come together. I think a better way probably is to look out for alternate avenues away from the mainstream institutions. One set of

3 3 people who came out of the CAA protests were students; that's a class that realizes how to organize. The student groups which came out post the CAA protests, the State is actively trying to quell them down. So, try to organize. There is no one direction. If you can get organized at the Resident Welfare Associations within your society, I think you should do it.

P R A S A N N A That pretty much covers what I have to say. We S . : have to look at creative resistance certainly. People say that states never practice democracy; it is the people that always practice democracy. So, we need to practice democracy. It comes with practice, and we need to practice creative resistance. Where the state has gotten miles ahead in terms of its creativity, we will need to match up.

S U C H I T R A Poonam, Prasanna, and Srinivas thank you so much V I J A Y A N : for joining us.

3 4 Poonam Agarwal is the Editor-Investigations at The Quint. She is an award-winning journalist and won Ramnath Goenka Award for Investigative Journalism, the Best Investigative Journalist in The News Television Awards, and the CNN Young Journalist Award.

Srinivas Kodali, an independent researcher working on data, governance, and the internet. His work focuses on the evolution of technology in India and its impact on democracy.

Prasanna S. is a Delhi-based independent law practitioner who is an Advocate-on-Record in the Supreme Court. He is a founding trustee of the Article 21 Trust and Project Constitutionalism.

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