Challenge to democracy

The Election Commission’s helplessness in the face of a campaign against it by the BJP’s prime ministerial candidate, Narendra Modi, and blatant violations of the model code by others during the general election have brought to the fore questions about its ability to ensure a level playing field in the world’s largest democracy.

BJP workers stage a dharna against the Election Commission outside the Banaras Hindu University in Varanasi on May 8.

WHEN NARENDRA MODI, the Bharatiya Janata Party’s (BJP) prime ministerial candidate, accused the Election Commission of India (E.C.) of showing bias and submitting to “political influence” when it denied him permission to hold a rally in Varanasi on May 8, political observers could not miss the irony of the attack on an institution that has inspired democracies across the world for not only facilitating smooth regime changes but doing it in a way that invites praise even from the losers.

First, Modi’s attribution of motives to the E.C.’s actions flew in the face of his defence of the institution on March 14, when he reviled External Affairs Minister Salman Khurshid for criticising the E.C.’s “overzealousness” in enforcing the model code of conduct and the Supreme Court’s “activism” in interpreting election laws before an academic audience in London. Second, as Modi’s May 8 comments in Varanasi revealed, he was at odds to explain why the E.C. was biased against him. He himself conceded that the Congress could not recover lost ground with the help of the E.C., which he alleged was not neutral. He even admitted that he did not know under whose influence the E.C. was functioning, which exposed the hollowness of his allegation of partisanship against the institution.

Modi’s virulent campaign against the E.C. in the last phase of the elections to the 16th Lok Sabha revealed a mindset that tends to create imaginary villains, especially when one’s campaign against known adversaries loses steam. The E.C. called Modi’s bluff by deploring the allegations of bias, and refusing to transfer the Returning Officer of Varanasi. The officer had given sound professional advice not to permit Modi’s rally in view of the concerns expressed by agencies responsible for the leader’s security.

War of words While the Modi-E.C. war of words played out in full public view, exposing Modi’s and the BJP’s lack of respect for august institutions, and the open defiance of institutional norms which governed the E.C.’s conduct and supervision of electoral process, the sheer helplessness of the E.C. in disciplining the rogue players became apparent. If the E.C. was confident of its powers and responsibilities under the Constitution, its response to Modi’s outburst was a sign of its exasperation and amounted to an admission that it had exhausted its powers.

Chief Election Commissioner V.S. Sampath, flanked by Election Commissioners H.S. Brahma and Nasim Zaidi, told the media on May 8 that the E.C. was not afraid of anyone, any political party or entity, in discharging its duties. “Casting aspersion against constitutional bodies will result in long-term damage to neutrality and independence of the Commission,” Sampath said, alluding to senior BJP leader Arun Jaitley’s remarks that “timid men can dwarf high offices”. The holding of a press conference in the midst of the elections to answer the BJP’s allegations was seen as a case of overreaction. If the E.C. meant what it said, it could have left the issue to people’s judgment rather than take special efforts to rebut the allegations of bias. Its late-night communication to Jaitley on May 7 explaining the reason for denying permission to Modi’s rally was more eloquent than the May 8 press conference. The communication was also posted on its website.

Brahma’s statement on May 9, made in the course of an interactive session with the Indian Women’s Press Corps in New Delhi, that the Returning Officer in Varanasi failed in his “obligation” to communicate to the BJP the reasons for denying permission to Modi to hold a rally in the city as early as possible would have made sense had he not distinguished Varanasi from other constituencies. Brahma observed that Varanasi was a VIP constituency and the authorities were dealing with “a very important personality”, and therefore, decisions should have been conveyed fast. Clearly, the E.C. was admitting a disconnect with the dominant public opinion in the country, which was clearly against the VIP culture, which the E.C. felt duty-bound to comply with. Long-time E.C. watchers recalled that Sampath’s illustrious predecessors such as T.N. Seshan, M.S. Gill, J.M. Lyngdoh and S.Y. Quraishi, who had conducted some of the most crucial general elections in the country in the 1990s and 2000s, would have ignored such insinuations and focussed on their task of ensuring free and fair elections even while influencing public opinion in their favour. The public perception of the E.C.’s neutrality is an essential ingredient of its credibility, but Sampath’s predecessors never allowed this perception to be eroded, whatever the individual strength of the political leaders who chose to attack or revile them, and went ahead with their uncompromising responses to electoral malpractices.

Therefore, the current E.C.’s exasperation, in the light of Modi’s and the BJP’s mischievous campaign against it, raises concern over whether the institution has been effective in preserving its image as a no-nonsense body. The E.C.’s rebuttal did not prevent Modi from holding a massive road show in Varanasi on May 8, defying prohibitory orders imposed on the city and daring the E.C. and the local administration, which is under its control, to take action against him. Did Modi’s persona and the perception that he was going to become the next Prime Minister influence the E.C.’s decisions?

The E.C. & its powers The test of E.C.’s role as the robust arbiter of political contestations in a large democracy like India lies in its responses to every complaint of violation of model code of conduct stipulated for the candidates and the political parties. The current model code of conduct, evolved after a consensus among political parties, was released by Seshan in January 1991. It is a brief document running to four and a half pages with seven paragraphs, relating to general conduct, meetings, processions, polling day, polling booth, observers, and party in power. It is on the basis of the code that the E.C. exercises its powers under Article 324, which deals with superintendence, direction and control of elections. According to the Supreme Court, the framers of the Constitution took care to leave scope for exercise of residuary power by the Commission in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time.

Every contingency, the court said in a landmark case ( Mohinder Singh Gill vs The Chief Election Commissioner ) in 1977, could not be foreseen or anticipated with precision. That is why, the court said, there is no hedging in Article 324. The commission may be required to cope with some situations that may not be provided for in the laws and rules. More important, the court observed that the framers of the Constitution intended the E.C. to be kept completely free from pulls and pressures that may be brought through political influence in a democracy.

One observation of the court in this case aptly captures the essence of Article 324: “Once the appointment is made by the President, the Election Commission remains insulated from extraneous influences, and that cannot be achieved unless it has an amplitude of powers in the conduct of elections of course in accordance with the existing laws. But where these are absent, and yet a situation has to be tackled, the Chief Election Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently, in all matters relating to the conduct of elections, and see that the election process is completed properly in a free and fair manner.”

In other words, the court said that Article 324 was a reservoir of power for the E.C. to act in such vacuous area, in its own right, as a creature of the Constitution. The model code enables the E.C. to ensure a level playing field for contestants, who are otherwise unequal, in seeking the support of the electorate to form a possible government after the elections. Over the years, the E.C. has sought to enforce the code so as to guarantee free and fair elections, an essential aspect of the basic structure of the Constitution.

To sceptics, the code may appear as a set of empty platitudes and exhortations to parties and candidates. But read with Article 324, the E.C. has used the code effectively to cajole, advise, censure, warn and even punish its violators in proportion to the degree of their violation. No wonder, the E.C. has been reluctant to accept legal status to the code, as it would mean conceding this reservoir of power to the courts to decide whether a party or a candidate has violated the legal provisions incorporated in the code. The responsibility of enforcing the code means the E.C. can, prima facie , reach a finding that there has been a violation of the code and decide on an appropriate response befitting the violation, without waiting for the legal course to exhaust itself.

Complaints of violations The 2014 election campaign gave rise to several complaints of violation of the code by candidates, parties and the media. A study of the E.C.’s responses to each of them shows its pusillanimity, even though it had fulfilled its obligation to check the veracity of the allegation seriously, by taking precautions, and in sufficient time. A case in point is the BJP’s release of the manifesto on April 7, on the day of the first phase of polling. When the complaint was brought to it, the E.C. maintained there was no bar on releasing a party manifesto on polling day but that the manifesto should not be publicised or telecast in areas where elections were being held. But when instances of live telecast of the manifesto release in areas going to the polls were brought to the E.C.’s notice, it did not register a case against the television channels, let alone caution the channels in advance against doing so. On May 30, the E.C. appeared to take a serious note of Modi’s violation of the code after he cast his vote in Ahmedabad. The E.C. noted that from the substance, tone and tenor of the address made by Modi, and the manner in which the BJP’s “Lotus” symbol was displayed by him at the meeting, it was evident that he intended to influence the result of the elections. The E.C. also said that he violated the provisions of Section 126 (1) (a) and 126 (1) (b) of the Representation of the People Act (RPA), 1951. Section 126(1) (a) says that no person shall convene, hold, attend, join or address any public meeting or procession in connection with an election, and under section 126(1) (b) display to the public any election matter by means of cinematograph, television or other similar apparatus during the period of 48 hours ending with the hour fixed for the conclusion of the election. Therefore, the E.C. directed that a first information report (FIR) be filed against Modi and all others who were involved in the convening and holding of the meeting under these provisions.

However, the E.C. did not issue a notice to Modi for violating Paragraph 1 (4) of the model code, which asks all candidates to scrupulously avoid canvassing within 100 metres of a polling station and holding public meetings during the period of 48 hours preceding the conclusion of the election. While any follow-up on the FIR would take its own time to reach its logical conclusion, the E.C. could have ensured a level playing field by censuring Modi. Similar was the E.C.’s response when Modi addressed a rally in Faizabad (near Ayodhya) in Uttar Pradesh on May 5 with a huge portrait of Ram, the mythical hero of Ramayana, as the backdrop on the dais.

Although Modi skirted the Ram temple issue, he said Faizabad should allow the lotus to bloom “in the land of Shri Ram”. Invoking religion in election campaigns amounts to violation of the code. The E.C. asked the district administration to provide videotapes of the Faizabad rally. The district administration has issued a notice to Laloo Singh, the BJP candidate in Faizabad. In this instance too, the E.C. belied expectations that it would intervene to censure Modi.

The E.C. issued notices to 14 political leaders, some of whom are Union and State Ministers, for violation of the model code. Some of these violations are grave, as in the cases of Union Minister Sharad Pawar and Punjab Chief Minister Prakash Singh Badal. Pawar exhorted the Maharashtra voters to vote at more than one place. The E.C. found that he overlooked the provisions of Section 171D of the Indian Penal Code under which voting more than once is an electoral offence of personation. Pawar maintained that he did not abet, procure, or attempt to procure votes by impersonation, and that he deeply regretted the confusion and misunderstanding caused by his inadvertent act. The E.C. closed the matter by conveying its displeasure to him.

At an election meeting on April 12 in Jalandhar, Badal said, “crores are spent on campaigning, though we show less in expenditure details.... Give quietly, don’t give openly.”

In a reply to the E.C.’s notice, he claimed that his remarks were misinterpreted. Going by the E.C.’s other responses, it can be expected that it will censure and advise him to be more careful in future. Babulal Marandi, the Jharkhand Vikas Morcha (P) president who is contesting from the Dumka (reserved) seat, sent an appeal on April 13 seeking the support of all the bishops, pastors, brethren and nuns of Dumka. The E.C. concluded that he was guilty of violating the code but let him off with a simple warning that he should be careful in future.

Hate speeches formed the bulk of the cases in which the E.C. issued notices for violation of the code. Notices were sent to Union Steel Minister Beni Prasad Verma, the BJP’s Nawada candidate Giriraj Singh (who said Modi’s critics would have their place in Pakistan), BJP vice-president Vinay Katiyar, Samajwadi Party leader Azam Khan, Assam Food Minister Nazrul Islam, All India United Democratic Front president Badaruddin Ajmal, Assam Health and Education Minister Himanta Biswa Sarmah, the BJP leader in charge of Uttar Pradesh Amit Shah, and Karnataka Chief Minister Siddaramaiah. The E.C. acted decisively only in the case of Azam Khan and Giriraj Singh by barring them from campaigning. In the case of Khan, the E.C. noted that his statement had the impact of creating mutual hatred among different sections of society, religious as well as linguistic.

It also said that the Minister had made totally baseless allegations against the constitutional authority enjoined to conduct free, fair and transparent elections. However, though there was mounting evidence against both Amit Shah and Modi, the E.C. not only remained silent but also lifted the temporary ban on campaigning imposed on Shah accepting his undertaking that he will not to repeat the hate speeches. However, he once again violated the code with impunity.

Some of the blatant violations of the code during the 2014 general election have brought to the fore serious issues concerning the E.C.’s effectiveness in ensuring free and fair elections. Only wide-ranging electoral reforms, including a broad-based appointment process to appoint the successors to the present E.C., can restore its credibility in the eyes of the public and ensure its decisive intervention when the code is violated.