von NANDANA ARUN and AYUSH DUTTA
The unfortunate implication of India’s current political climate is that the legal academia cannot afford to keep law a Kelsenian ‚pure‘ discourse. Quite paradoxically, this piece attempts to protect the very purity of law against unwanted politicisation. In this light, it examines the allegations of electoral fraud against the Election Commission of India (‘ECI’), seeking to anchor constitutional reform debates from misleading narratives.
Allegations of electoral fraud are not new to India. Over the decades, various political parties have advanced such claims, from allegations of rigging against former Prime Minister Indira Gandhi (culminating in Indira Gandhi v. Raj Narain) to booth capturing in West Bengal. What is unique this time is the attack against the integrity of the very institution of the ECI. While it may have been caused by the systematic political agenda of the ruling party, this is a specific case of institutional erosion. The lack of any substantial legal remedy in this matter brings forth the question: what now?
Risks of misleading the discourse
Populist-fundamentalist politics permeate every intellectual space, from the legislative chambers to rarefied corridors of academia. A case in point is J. Sai Deepak’s manoeuvre to repackage the call for the juridical dismantling of the 1950 Constitution as post-colonial emancipation, laundering the Hindu Rashtra project through anti-imperialist critique. What this episode demonstrates is not merely bad faith but the structural susceptibility of post-colonial discourse to nativist, majoritarian appropriation. The lesson for those advancing any legal or institutional resolution to such crises is stark: any remedial architecture inattentive to this risk may find itself re-scripted into the dramaturgy of the very forces that occasioned the crisis. A solution thus co-opted becomes a performative gesture rather than a bulwark: a discursive trophy for the regime rather than a constraint on it.
In today’s volatile political landscape, the danger is not just institutional erosion but the weaponisation of the dispute, as dominant political forces, especially on the right, may blame minority groups, weaving the fraud narrative into existing polarisation. In such an environment, the urgency of a credible resolution is not simply about electoral integrity; it is about forestalling the transformation of a technical dispute into a socially divisive political tool. The combination of high political polarisation, media echo chambers, and portrayals of minorities as disloyal voters creates fertile ground for narratives that could not only delegitimise elections but also undermine minority political participation. Once normalised, such narratives can justify voter suppression, intimidation, and other structural erosion of democracy, as seen in countries where fraud allegations hardened into ethnically driven political dogma – an example is the 2007 Kenya elections, where weak institutions and ethnocentric parties morphed a technical electoral dispute into violence, killing thousands and displacing more.
The Opposition will emphasise the fraud narrative, but this does not mean the ruling party rose solely due to a weakened and inept ECI. It continues to enjoy popular support and remains the world’s largest party. The degradation of democratic institutions is thus an effect, not a cause, of its rise – a distinction crucial to analysing the situation and proposing a solution. The current regime has exploited the “historical sedimentation” while accelerating the systematic institutional erosion. This influence can be observed through the unexplained appointments, dismissals, and the stalling of judicial appointments.
This piece thus posits that the ECI’s structural incompetence or lack of independence must not be rooted in any apolitical discussion of formal legal institutionalism; only by identifying its political causes can the purity of legal institutions be preserved.
Comparative Experience
Globally, similar large-scale allegations against the democratic machinery have arisen across regimes and met with different responses. Before the scenario is hijacked and misappropriated by political forces, the crisis must be recognised. A discussion of similar crises in democracies in the twenty-first century holds the potential to reveal a possible resolution.
Hungary’s Constitutional Court, post the 2010 victory of Viktor Orbán’s Fidesz party, had its once broad powers substantially limited. Reforms by the government led to the judges never contradicting the State and being relegated to a rubber stamp for all governmental requests. Venezuela’s 2024 elections posed a very similar situation. The National Election Council, a heavily politicised body condemned as unfair, oversaw the process. The reforms weakened the country’s election commission, tilting results to the ruling party and serving authoritarian rule. Similarly, Cambodia, a country whose electoral process faced repeated amendments with international assistance, fails to meet international obligations, with credibility questions still resurfacing.
These three cases highlight the consequences of recent allegations. The immediate response to this would be to have the Supreme Court constitute a committee, although they are not immune to governmental influence. Furthermore, reforms within the ECI constitution, while they could ensure some form of stability, will eventually be usurped by political influence, bringing us back to square one. The credibility of these fourth pillar institutions will continue to remain in doubt, as observed in the instances of Venezuela and Cambodia. As comparative experience depicts, institutional reforms, if unable to withstand the influence of politics, will become a means for authoritarian ruling rather than a mechanism of safeguard.
Roberto Gargarella argues that the State’s original ‘political sociology’ is outdated, leading to an epochal crisis, where the procedures it lays down no longer serve the society. As Gargarella says: “The point is that, even if it worked perfectly, the institutional system would be incapable of ensuring the representation of the whole of society – as if we had acquired a suit in our childhood that no longer fits, nor will ever fit our body, no matter how much we stretch its sleeves or add buttons. This is to say, the constitutional suit was not designed for a social “body” like the present one.” The institutional reforms must therefore account for authoritarian populist encroachments from the Executive. Before India embarks on the journey to reform its machinery, it must identify the precise nature of the crisis here: reforms may instil some public trust, but without political safeguards, these reforms risk becoming tools for the ruling party itself.
Conclusion
When a rusty old machine loses a crucial screw, no amount of oiling can fix it. Finding the screw and fixing the machine will only delay its inevitable collapse. You must replace it.
Like the rusting machine, ECI cannot afford short-term fixes; it needs deeper and durable reforms. Experiences from Cambodia, Hungary and Venezuela illustrate how consequences of such reforms, divorced from political realities, quickly become hollow devices.
The challenges present, therefore, are twofold: countering the political forces undermining the democratic institutions, and ensuring the credibility of the ECI is restored without falling prey to political capture. The most effective remedies are targeted and evidence-based: independent forensic audits of the disputed constituencies, expedited judicial hearings with full discovery powers, and complete public disclosure of procedural records, including EVM chain-of-custody data and voter roll logs. While not cosmetic moves, these pre-emptive measures guard against narrative hijacking by any political faction seeking to marginalise vulnerable groups, while safeguarding democratic legitimacy and public trust in the electoral process.
Zitiervorschlag: Arun, Nandana and Dutta, Ayush, Diagnosing the Political Nature of the Gradual Decadence of the ECI, JuWissBlog Nr. 80/2025 v. 25.08.2025, https:/www.juwiss.de/80-2025/
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