This polls, Election Commission credibility has taken a battering

P. Chidambaram, a senior Congress leader who has held various key portfolios in the UPA regime, recently accused the Election Commission of turning “a silent spectator to the excesses of the BJP and to the utterances of Prime Minister Narendra Modi”. The election body has failed the country, he said.

That was four days before the Supreme Court, on Thursday, directed the ECI to take a decision on the nine complaints filed against Modi and BJP president Amit Shah. Complaints were filed against them for allegedly violating the Model Code of Conduct (MCC). Congress MP Sushmita Dev had sought directions from the ECI for expeditious action on the pending allegations against Modi and Shah.

Congress sources claim they have given more than 37 representations to the ECI. Ten of these, they say, are in the categories of the two leaders making "hate speeches, and a virulent, divisive and polarising campaign". Between March 10—when the ECI announced the Lok Sabha 2019 elections—and May 2, a total of 475 complaints of MCC violations were registered. A handful were dropped or withdrawn. There are cases against many individuals in the ruling BJP, as well as other parties across the country. Ironically, the ECI website has not listed the cases against Modi and Shah.

Congress spokesperson Abhishek Manu Singhvi expressed surprise at the silence on the part of the ECI with regard to cases against Modi and Shah, but was all praise for the ECI actions against other BJP leaders. “We have approached the ECI multiple times. To be fair, they have been more than receptive and prompt on complaints moved in cases against other BJP leaders, compromised officials, and uniquely bizarre violations like the Modi biopic. For that we salute them," Singhvi said at a news conference. The counsel for Sushmita Dev, Singhvi saw a “hands-off approach” by the ECI when it came to these two individuals; they had moved eight cases against duo. The party's angst was possibly heightened because Congress president Rahul Gandhi was not given a similar treatment.

But it is not the Congress alone that has begun to question the ECI. Three weeks ago (on April 8, 2019), 66 retired bureaucrats wrote to President Ramnath Kovind expressing deep concern “about the weak-kneed conduct of the ECI, which has reduced the credibility of this constitutional body to an all-time low”. In their letter, they cautioned that “any erosion of the people's confidence in the fairness of the ECI has very grave consequences for the future of our democracy and we hope that the gravity of the situation will be appreciated by the ECI”. The immediate triggers for the letter appear to have been Modi's address to the nation about the successful launch of India's first anti-satellite weapon; a web-series Modi: A Common Man's Journey; the NaMo TV channel, and UP Chief Minister Yogi Adityanath calling the Indian Army “Modi's Army”.

On March 19, ECI had directed all political parties against using the defence forces during their election campaign. Prime Minister Modi, however, addressed a rally in the Latur district of Maharashtra on April 9, and appealed to the first-time voters to dedicate their votes to those who conducted the Balakot air strikes and the martyrs who lost their lives in Pulwama. The ECI has, however, not let Modi off the hook altogether. A day before the release of a big screen Modi biopic, the ECI imposed a ban until the results of the Lok Sabha elections were declared.

Though not an MCC violation case, the ECI, last month, took note of the income tax raids on BJP's rival parties, and wrote to Revenue Secretary Ajay Bhushan. Any action by its enforcement agencies during election time should be “neutral and non-discriminatory”. More importantly, the poll panel should be informed in advance.

“It seems as if the ECI believes that it is nothing but an extension of the government of the day, or what is worse, the political party that controls the government. Otherwise, how does one account for the spate of recent measures that have brought the credibility of this august constitutional authority into question?” asks M.G. Devasahayam, a retired bureaucrat and convenor of the Forum for Electoral Integrity. He refers to the year-old instances of BJP's IT cell chief being able to tweet the election dates of Karnataka before a formal announcement by the ECI.

Chief Election Commissioner Sunil Arora, who was also a recipient of the bureaucrats' letter to the president, has not reacted to the charges levelled against the ECI. His predecessor, O.P. Rawat, when asked about the Commission's neutrality coming under a cloud, saw it as a “healthy democratic trend", where stakeholders can vent their feelings. He told THE WEEK, “In sports, if a player raises his or her voice against the umpire, he or she is penalised. But, here, the referee has to bear with all this because there is no penalty prescribed.” Rawat added that this helps keep the ECI on their toes, and “helps us continue to deliver impartially”. More importantly, the former CEC elaborated, “The voter in our country has come of age. Even an illiterate and poor voter has an objective perception about our institutions and the antecedents of parties. So, we never felt the need for any certificate from anyone because it is the common voter whose perception matters.” He also pointed to decisions of the Commission that could not have been great news for the BJP.

T.S. Krishnamurthy, also a former CEC, says, “It is unfair to say that the ECI is soft [on Modi and Shah] just because it takes a decision that is not favourable to the Opposition”. Krishnamurthy, in the course of a telephonic interview, elaborated, “The ECI has to take a decision on merits. If [Commission] doesn't take action against a particular person, one can't immediately say the ECI is soft”. According to him, the ECI should take a reasoned decision. “It doesn't matter if it is the prime minister of India or the Opposition leader, or any ordinary candidate. They have to take a decision within a reasonable time frame.” Asked about the Congress petition suggesting delay on the part of the ECI, Krishnamurthy asks, “If the Supreme Court takes five years or more, do we ask questions? The High Courts have so many decisions to take. Why don't they do it in a time frame? In fact, there are cases where the arguments have been heard and the judgment passed after one year. But, have we ever asked them such questions? So, the Constitutional authority goes into the issue and it should have some time to consult people. I agree that it must be as early as possible, it should not be a long period. If 15 days is a long period, I will ask the judiciary why election petitions are heard even after the tenure of the house is over. Who is responsible for it?" He is, however, careful in pointing out that he is not commenting on whether the ECI is soft or not in individual cases. On the complaints against PM Modi and Shah not being listed on the ECI website—which has a section on MCC violations—Krishnamurthy says “that's a different matter”.

He does not say the ECI's image has taken a drubbing, but former CEC S.Y. Quraishi, tweeted that the PM's chopper raid incident was a “missed opportunity to restore not just the image of the ECI, but also the PM himself”. The incident pertains to the suspension (since revoked) of an IAS officer who was posted as an election observer in Odisha for checking the helicopter in which Modi had travelled in.

“Both these institutions have been under the public scanner—PM for repeatedly violating the model code, and the ECI repeatedly overlooking it. This “raid” on PM's chopper should have been used to demonstrate that the law is equal for everybody. In one stroke, the intense criticism against both would have come crumbling down. Unfortunately, they both chose a different course. The ongoing criticism will now get magnified many times over.”

The BJP, obviously, has no complaints against the ECI. The party, in fact, did not react to the ban on the Modi biopic, though it defended its case before the poll panel. At other times, Law Minister Ravi Shanker Prasad has said they left certain issues—like the social media companies influencing Indian elections—to the ECI. That is an affirmation of faith.

"The ECI is a constitutional body, and justice must be done. It is not an ordinary body. They have Constitutional stature, so they have protection from the legislature. They are above the  parliament, so they have an extra responsibility," says Congress MP Sushmita Dev.

According to her, what sets India apart from the other nations around us, in our geopolitical situation, is that India upholds this institution. "That is the basic difference between us and our neighbouring countries. If we lose that, there will be nothing left for us," she adds.

How the ECI satisfies the Supreme Court at the hearing on May 6 will reveal a lot about how fair and effective the poll panel is.