Campaign against ECI ‘destabilising’, say former judges

1. At a Glance

• 42 former Supreme Court and High Court judges published an open letter saying a "calculated campaign driven by vested political interests" against the Election Commission of India (ECI) and the judiciary risks "destabilising the world's largest democracy" [1].
• The letter goes after three things: allegations of "vote theft" that it says are made at press conferences and not in court, the habit of blaming Electronic Voting Machines (EVMs) "only after defeat", and "selective litigation" by activist outfits [1].
• UPSC relevance: the independence and credibility of the ECI, whether EVMs can be trusted, the judiciary's role in election disputes, and the ethics of retired judges taking public positions. All of these fall under GS-II polity and GS-IV ethics.

2. Why in the News

• On 9 October 2026, The Hindu (page 4, International edition) reported the open letter by over 40 former SC/HC judges warning against a campaign to discredit the ECI [1].
• The letter does not name the party it criticises. It describes "a party that governed this nation for over five decades" that "now claims that the very system which elected it is rigged" [1].
• The letter says that when the Commission "seeks a sworn declaration, none is filed" [1].

3. Background & Evolution

• The ECI as a constitutional body: set up under Article 324, which gives it superintendence, direction and control of elections to Parliament, State Legislatures, and the offices of President and Vice-President. It was constituted on 25 January 1950, now marked as National Voters' Day [2].
• EVM timeline (standard static facts):
• EVMs were first used experimentally in 1982 in the Parur (Paravur) Assembly constituency, Kerala [2].
• In A.C. Jose v. Sivan Pillai (1984), the Supreme Court held that EVMs could not be used without a statutory basis. Section 61A was then added to the Representation of the People Act, 1951 in 1988 [2].
• In Subramanian Swamy v. ECI (2013), the SC directed that VVPAT be introduced in phases [2].

• In Association for Democratic Reforms v. ECI (April 2024), the SC rejected the demands to return to paper ballots and to count 100% of VVPAT slips. It allowed losing candidates who finished 2nd or 3rd to seek verification of the burnt memory of up to 5% of EVMs per Assembly segment [2].

• Earlier open letters: retired judges and bureaucrats have written group open letters on institutional matters before. This letter continues that trend, but this time in defence of the ECI [1].

4. Core Static Facts

5. Multi-Dimensional Analysis

Legal / Constitutional

• The letter argues that allegations belong before courts with proof: "They file petition, one after the other. They seldom file proof" [1].
• Article 329(b) and the election-petition route give a proper legal remedy, and the letter's point that sworn declarations are not filed fits that framework [1][2].
• The letter also says judgments are criticised "whenever it does not serve their interests", which it calls an attack on the authority of courts [1].

Ethical / Governance

• Trust in institutions: the letter warns of "vitriol… amplified and disseminated on an industrial scale" aimed at "eroding public confidence in a widely trusted judicial system" [1].
• Counter-view to cover in Mains: the legitimacy of the ECI also rests on transparency, such as access to electoral rolls and voters' ability to verify, and on the Commission being seen to be independent. Opposition scrutiny is a democratic right.
• Neutrality of retired judges: when retired judges take public positions, it raises questions about post-retirement conduct and the perception of partisanship.

Political / Democratic

• The letter's line on asymmetry: "Electronic Voting Machines are blamed only after defeat. Victories won on the same machines go unquestioned" [1].
• "Activist outfits with a long record of selective litigation" are said to "lend these claims a veneer of legality" [1]. This feeds the PIL-misuse debate.

Technological

• EVM–VVPAT design: standalone machines with no network connection. The VVPAT slip is shown to the voter for 7 seconds [2].
• The ADR (2024) judgment introduced a post-result check of the burnt memory, which the losing candidate pays for [2].

Administrative

• The ECI's response to vote-theft claims, a demand for a sworn declaration, puts the burden of proof on the person making the allegation [1].

6. Recent Developments (last 12-18 months)

• 9 Oct 2026: 42 former judges issued the open letter calling the campaign against the ECI "destabilising" [1].
• Allegations of "vote theft" were being made at press conferences, and the ECI asked for sworn declarations that, according to the letter, were never filed [1].
• Note: my searches of whitelisted sources failed, so I could not independently confirm other 2025–26 developments, such as electoral-roll revision drives or related petitions. Check them in current-affairs compilations.

7. Prelims Hooks

• The ECI is a permanent constitutional body under Article 324 [2].
• Article 329 bars courts from interfering in electoral matters except through an election petition [2].
• EVMs were first used in 1982, Parur (Paravur), Kerala [2].
• The statutory basis for EVMs is Section 61A, RP Act 1951, inserted in 1988 [2].
• VVPAT was mandated after Subramanian Swamy v. ECI (2013) [2].
• ADR v. ECI (April 2024) rejected 100% VVPAT counting and a return to paper ballots [2].
• After ADR 2024, the 2nd- or 3rd-placed candidate can seek verification of 5% of EVMs per Assembly segment [2].
• The CEC can be removed only in the manner of an SC judge. Other ECs can be removed only on the CEC's recommendation [2].
• The CEC/EC appointment law is the 2023 Act, which replaced the 1991 Act [2].
• National Voters' Day: 25 January, the ECI's foundation day [2].
• The open letter had 42 signatories, including ex-SC judges Hemant Gupta and Pankaj Mithal [1].

8. Why 'Prove It in Court' Is Harder Than It Sounds

• The letter's main point is fair as far as it goes
• A charge of 'vote theft' made only at a press conference cannot be tested. No one has to answer it under oath [1].

• So the letter is right that public doubt grows while nobody checks whether the claim is true.

• But an election petition is a narrow tool

• Under Section 81 of the RP Act, 1951, an election petition (a court case challenging one election result) must be filed within 45 days of the result [2].
• Each petition challenges one constituency's result. A complaint about the electoral roll (the official voter list) as a whole, such as many names wrongly deleted in many seats, does not fit easily into that format.

• Article 329(b) also stops courts from stepping in while the election is still going on [2]. So the main legal check comes only after the result.

• Checking EVMs costs the challenger money

• After ADR v. ECI (2024), a losing candidate can ask for EVM memory to be checked, but the candidate pays for it [2].

• A party with little money, or an ordinary voter, may be unable to use this route at all.

• What this means for your answer: 'go to court' is the right principle. But the legal routes were built for disputes about one seat, not for system-wide claims. That gap is one reason the fight moves to the media.

9. Why the ECI's Independence Is Questioned at All

• The Supreme Court said the government should not choose alone
• In Anoop Baranwal v. Union of India (March 2023), the SC held that the CEC and ECs should not be appointed by the Executive (the government) alone [3].

• Until Parliament made a law, the Court put a committee in charge of choosing them: the PM, the Leader of Opposition and the Chief Justice of India [2].

• The 2023 Act gave the government a built-in majority

• Under the Act, the Selection Committee is the PM, a Union Cabinet Minister and the Leader of Opposition [3].
• Two of the three members come from the government, so the government's choice always wins.

• The CJI is not on the committee.

• The shortlist also starts inside government

• A Search Committee headed by the Cabinet Secretary (the country's top civil servant) prepares the list of names [3].

• The Selection Committee can also choose someone who is not on that list [3].

• Why this matters for the letter's argument

• The letter treats doubts about the ECI as political attacks [1].
• But part of the doubt comes from how the law is designed, not from any one party. An answer that ignores this will look one-sided.

10. The Strongest Case Against the Letter, and What It Gets Right

• Objection 1: 'Activist outfits' have won some of India's biggest transparency cases
• The letter attacks 'selective litigation' by activist outfits [1].
• Yet the Association for Democratic Reforms (ADR) was a petitioner in the Electoral Bonds case (2024), where the SC struck down the anonymous electoral bonds scheme [2].

• PIL (public interest litigation, a case filed for the public good rather than for oneself) by such groups has improved election transparency. Calling all of it 'selective' goes too far.

• Objection 2: Former judges speaking as a group can look political

• The letter has no legal force [1]. But the title 'former judge' gives it moral weight with the public.

• Taking a position in a live political fight, even without naming the party, can make the judiciary itself look partisan. This is a GS-IV issue: the judge's duty to appear neutral does not fully end at retirement.

• Objection 3: Trust also depends on what voters can check for themselves

• In 2009, Germany's Federal Constitutional Court ruled that voting machines must let an ordinary voter check the key steps without expert knowledge [2].

• On this view, 'the machines are fine' is not enough. People also need to be able to see that they are fine.

• What the letter gets right (concede this)

• Blaming EVMs only after losing, while accepting wins on the same machines, is inconsistent [1].
• Refusing to give a sworn statement while repeating the charge in public weakens the charge [1].

• In the 2017 'EVM Challenge', the ECI invited parties to try to show that the machines could be tampered with [2]. So the ECI has opened itself to testing before.

• Balanced line for Mains: both sides hurt trust. One side makes claims without proof; the other side's appointment system makes its neutrality hard to see.

11. What Would Actually Rebuild Trust in the ECI

• Parliament should add a neutral member to the selection committee
• Anoop Baranwal (2023) said the government should not appoint alone, and its interim committee included the CJI [3][2].
• Earlier, the Law Commission's 255th Report (2015) recommended a three-member collegium (selection panel) of the PM, the Leader of Opposition and the CJI [2].

• Restoring a neutral third member would make the 2:1 government majority disappear [3].

• Parliament should give Election Commissioners the same removal protection as the CEC

• Today only the CEC can be removed in the same way as an SC judge [2].

• The Law Commission's 255th Report also recommended this protection for the other ECs [2].

• The ECI should make claims easy to test, not just demand sworn statements

• Asking for a sworn declaration puts the burden of proof on the person making the charge [1]. That is fair.
• But a citizen can only prove that names were wrongly deleted if they can get the deletion lists and the reasons for each deletion.

• Germany's 2009 ruling shows the standard: an ordinary voter should be able to check the process [2].

• Political parties should use the legal channels that already exist

• File sworn complaints and election petitions within the 45-day limit [2][1].
• This creates a court record, and it ends the cycle of press conferences followed by public denials.

12. Anchors for Answers

• Data: 42 former SC/HC judges signed the open letter [1]
• Report/Committee: Law Commission of India, 255th Report on Electoral Reforms (2015): collegium of PM, Leader of Opposition and CJI to appoint ECs; removal protection for all ECs [2]
• Law/Case: Anoop Baranwal v. UoI (2023), appointment should not be by the Executive alone [3]; CEC and Other ECs Act, 2023, committee of PM, a Union Cabinet Minister and the Leader of Opposition [3]; ADR v. ECI (2024), EVM memory check paid for by the candidate [2]; Art 329(b) and Sec 81 RP Act, 45-day window for election petitions [2]
• Comparison: Germany's Federal Constitutional Court (2009) held that voting machines must let an ordinary voter check the key steps without expert knowledge [2]

13. Mains Relevance

• GS-II: Appointment to various constitutional posts, powers, functions and responsibilities of constitutional bodies; salient features of the RP Act; structure, organisation and functioning of the Judiciary.
• GS-IV: Probity in governance; ethical issues in public institutions; conduct of former constitutional functionaries.
• Possible question stems: 1. "Public trust is the real capital of the Election Commission of India." Discuss the challenges to the ECI's credibility and suggest measures to strengthen its institutional independence. 2. Examine the debate on EVM reliability in India in light of recent Supreme Court judgments. Is a return to paper ballots justified? 3. Should former judges of constitutional courts take public positions on politically contested issues? Critically examine.

14. Related Topics to Study Next

• CEC and ECs Act, 2023, and Anoop Baranwal v. UoI (2023): the debate over how appointments are made and how independent the ECI is.
• EVM–VVPAT jurisprudence: the legal background to the "EVMs blamed after defeat" argument.
• RP Act, 1950 and 1951: electoral rolls, election petitions and corrupt practices.
• Electoral roll revision (summary vs intensive revision): central to "vote theft" allegations.
• PIL: evolution and misuse: connects to the letter's "selective litigation" charge.
• Model Code of Conduct: the ECI's main non-statutory enforcement tool.
• Contempt of Courts Act, 1971: the line between criticising judgments and scandalising the court.
• Electoral Bonds judgment (2024): another major ECI- and transparency-related SC ruling.

15. NCERT Concepts to Revise

• Election Commission of India (Polity): The body the letter defends; Article 324 gives it control over elections, and its credibility is the core issue.
• Electronic voting machine (Polity): The letter says EVMs are blamed only after defeat; you need to know how they work and their legal basis.
• Voter verifiable paper audit trail (Polity): VVPAT slips are the paper check on EVMs and central to court rulings rejecting paper-ballot demands.
• Bar on judicial interference in electoral matters (Polity): Article 329 explains why fraud claims must go through an election petition rather than press conferences.
• Election petition (Polity): The proper legal route for proving election fraud, where the letter says allegations are not backed by sworn proof.
• Public interest litigation (Polity): The letter's charge of 'selective litigation' by activist outfits ties into debates on PIL misuse.

16. Common Errors / Trap Areas

• Article 324 vs 329: Art 324 sets up the ECI and its powers. Art 329 bars court interference. They are often swapped.
• Removal protection: only the CEC has SC-judge-like removal protection. Other ECs are removed on the CEC's recommendation, not through impeachment-style proceedings.
• Where election petitions are filed: petitions for MP and MLA seats go to the High Court, not the SC. Disputes over the President's and Vice-President's elections go to the SC (Art 71).
• What ADR 2024 allowed: it permitted verification of EVM memory (5%), not more VVPAT counting. It rejected 100% VVPAT matching.
• Who wrote the letter: former judges, so it is not a judicial pronouncement and has no legal force. It also did not name the party it criticised [1].