Abhishek Manu Singhvi: ECI can’t have a different standard for PM Modi and Amit Shah

To be precise, as on April 29, about 40 representations have been made to the Election Commission. Ten out of these representations were related to the Prime Minister and Mr Amit Shah, which have elicited zero response. There hadn’t been a rejection or acceptance, which in itself is very strange. In other words, they haven’t been rejected either. And the first of these started almost a month ago.

In many others, we have had great success, for which I would like to complement the Election Commission. It was due to our representation that the Chief Minister of Uttar Pradesh was prohibited from campaigning for a certain period of time. Applying the same yardstick, Mayawati was prohibited from campaigning for a certain period of time for her remarks.

Our point is that there cannot be two standards. The Prime Minister and Amit Shah can’t be in one category and the rest of the country in the other category. The PM and Amit Shah are not above the law. They are not above the Model Code of Conduct. And a non-decision by the EC for a month is a decision in itself. It has to make a decision within the short window of election period of two months.

Well, it is not right to comment on the matter since it is sub-judice. Let them decide as they see it fit. I personally believe that we are asking for a very simple thing. We are pointing out that there must be a decision. Now, it cannot be that within the heat of the electoral window of two months, you allow the Prime Minister and Amit Shah to get away. So, I don’t think it is a very big thing that we are asking of the Supreme Court which is to direct the Election Commission to take a decision forthwith.

Well, all this is an interesting commentary on the style of functioning of Modi. There haven’t been these many complaints in the past in such a short span of time. The earlier Prime Ministers, of whatever political colour, didn’t act the way as he has. His style is combative. It is divisive. He is a habitual offender who has repeatedly violated the Model Code of Conduct. Therefore, the more you violate the MCC, there would be as many complaints. Vajpayee didn’t act like that. VP Singh didn’t act like that. The other non-Congress governments in the past haven’t acted like that. So, I think it is more a reflection on his style of functioning.

There is obviously a climate of fear and retribution created by this government and the Prime Minister which inhibits the free working of the institutions. There is a hesitation before anyone takes action against the PM and Amit Shah. Fear could be the only answer as to why for an entire month, no action has been taken against the two individuals.

I am not talking about the ECI here, but the process of appointment in certain cases raises great doubts. The process of interference in certain institutions over the last five years has increased considerably. Be it the CBI, RBI, educational institutions, libraries, museums, there has been government interference everywhere, which raises suspicions.

The level-playing field is an objective in itself. The level-playing field is supposed to be at the heart of a free and fair election. Free and fair elections lie at the heart of a democracy. Democracy is at the heart of the basic structure of the Indian Constitution. Basic structure is something which cannot be amended come what may. So, once you allow the level-playing field to be violated, you are violating the basic structure of the Constitution.

People who should be exemplars (the higher you are, the more responsibility you owe to uphold the basic structure of the Constitution) must attract more severe punishments for violating the basic structure and the Model Code of Conduct. So, if a leader is barred from campaigning for 48 hours for violating the MCC, the punishment must be double for someone like the Prime Minister or Amit Shah.

The strength of the Model Code of Conduct lies in the fact that it is not statutory. Its strength lies in the fact that it is merely instructions from the Election Commission. But it has largely been followed by mostly all political parties till now. The moment you make it statutory, people will start challenging its nitty-gritty and it will become like any other existing law. I don’t believe that there are many problems with the Model Code of Conduct as it is.

I think the problem lies in our application of the Model Code of Conduct. For example, actions by the ECI must be immediate. After all, the MCC is alive for a very short window. If that window is not maintained, the very purpose of the MCC is lost.

Secondly, the ECI needs to act 24X7. They have to act instantly. They have to act day and night and ensure that responses are received within hours and decisions are given within days.

Of course, there are gaps in the MCC. There will be situations which will not be addressed by the MCC. There are always gaps in any law, and to that extent, the Election Commission has more flexibility. It has been given more flexibility to be able to deal with such situations. But again,it is the swiftness of the action and the severity of the punishment that would really make people fall in line.

For example, it was our suggestion, a matter that I entirely argued, which said that since you can’t get the benefit of your own wrong, you must make sure that the person who has violated the MCC is stopped from getting the benefit for 48 hours or 72 hours.

Now, this hasn’t happened in 70 years of governance. This is a good thing which applies to Congress as well. Let me tell you that if you apply it strongly and uniformly, all these violations will stop because if the Prime Minister can’t campaign for two days, it takes away a valuable right when it matters. The shoe must pinch where it hurts.

Yes, I agree that the institutional independence of the ECI must be maintained. Appointments must be made strictly on merit, without fear of favour, more so in the current political climate. I am talking about the appointments of all the three Election Commissioners. That is where the independence of the institution of ECI lies.

While I cannot say if that has always happened, I believe that the time has come in the face of Narendra Modi’s divisive politics that ECI’s appointment process must also now be changed to include the Leader of Opposition and the leaders of opposition parties into a collegium.

This is a sad as well as a funny story. It is sad because someone as high as the Prime Minister does it every time when he goes to cast his vote. He holds a roadshow whenever he casts his ballot. It is completely against all the principles. The funny part is that on the preceding night of April 22, we wrote a letter to the ECI highlighting that PM did the same after casting his vote in the 2014 and 2017 elections. We told the ECI that chances are that he would do the same on April 23 as well. And we were proven right.

This is unashamed, egregious and shameless conduct. The PM in this case is just a voter. How could a voter go to the booth and have a procession around it?

The old judgment of the Supreme Court, which is called Indira Nehru Gandhi vs Raj Narain, is relevant. The judgment held that free and fair elections, of which a level-playing field is a part, and for which the Election Commission of India, the mega-policeman, are a part of the basic structure of the Indian Constitution. That’s a very important principle laid down by a five-judge bench of the Supreme Court.