The Errors of Commission: ECI a caged parrot now?

The Election Commission is on leave. ECI, Rest in Peace. It is the Election Omission, not ‘Commission’ of India— the barbs have been incessant during the past few weeks, casting aspersion on the independence of the poll body. Increasingly accused of working as an extension and appendage of the Government, is the Election Commission of India (ECI) at its weakest in 2022 and more compromised than ever? Or is criticism of the Commission unwarranted and motivated?

Observers point to a string of wins by opposition parties in states to rubbish criticism of the Commission. Didn’t Mamata Banerjee win in Bengal and the Congress in Chhattisgarh? Doesn’t that prove Election Commission’s impartiality and establish beyond any doubt that elections continue to be free and fair?

The question, say detractors, should be framed differently. Do the ECI’s acts of omission and commission appear impartial and fair? Are they consistent and even? While people’s will may still get reflected in the results by and large, would they be even more emphatic if the ECI were more even-handed?

The contrast in ECI’s conduct during the assembly election in West Bengal last year and the ongoing election in Uttar Pradesh cannot possibly be more stark. In West Bengal, EC had ordered the transfer of a string of state government officials, deputed a Special Police Observer and also ordered out several officials from the office of the Chief Electoral Officer in the state. Special teams were sent during the polling which stretched out to eight phases, one more than in UP.

In sharp contrast, the Yogi Government, like all incumbent governments, effected a string of transfers ahead of the election, posting favourites in key positions. The central government sent back Durga Shankar Mishra, due to retire soon, as Chief Secretary to the state weeks before the poll was notified. But the Commission remained unmoved and took no cognizance of complaints.

Rajeshwar Singh, a Joint Director in the Enforcement Directorate (ED) till last month, resigned and filed his nomination to contest as a BJP candidate from Lucknow. Himself born and educated in Lucknow, his wife Lakshmi Singh is a Range IG in Lucknow. It was expected that the Election Commission would transfer her out of the district. But curiously, no such action followed.

Indeed, most of the key officers in Uttar Pradesh posted by the Yogi Government were allowed to remain in their posts. The Samajwadi Party petitioned ECI for the transfer of Additional Home Secretary Avanish Awasthi, Director General of Police Mukul Goel, the Police Commissioner of Gautam Buddha Nagar, among other officers who were perceived to be close to Yogi Adityanath. But the EC gave the pleas a cold shoulder.

The unfortunate signal it sent out was that of a partisan Election Commission, a charge which has never before been bandied around so casually and so freely as this time.

There are also very few buyers, for example, for the Commission’s alibi that rules do not allow it to prohibit broadcast of political speeches and interviews of the sitting Prime Minister and the Chief Minister. When news agency ANI released a long interview with the Prime Minister on the day of the first phase of polling in UP on February 10—aired simultaneously by all prominent TV channels including Sansad TV—eyebrows were raised.

Similar interviews with the then Congress President Rahul Gandhi during the Gujarat election in 2017 had been stopped by the Election Commission. Why were the same rules not applied this time?

The Prime Minister’s interview could have been telecast the same day after the polling got over; or the next day because the PM spoke on no national emergency or crisis. It was a political interview tailored for the election and meant to trash the opposition. The simultaneous decision of all TV channels to telecast it in the morning of polling made the motive suspect. Should the Election Commission have stepped in?

During that day, as polling was going on, the Prime Minister was addressing an election rally in Saharanpur at 12.16 pm, with all the usual dog-whistles directed at voters in the region. What is more, TV footage from inside the PM’s car showing the PM waving at the crowd lined up on both sides of the road, was used by all channels. The footage had clearly been supplied by the Government or the public broadcaster and could not have been a part of a legitimate media exercise as nobody would have been allowed inside the PM’s car.

The PM had used a similar trick when, during the West Bengal assembly elections in 2021, the day before polling began on March 27, he used an official trip to Bangladesh to visit a temple of the Matuas, who could influence the outcome in 30 assembly seats in West Bengal. The visit to the temple was once again telecast live for the benefit of voters in West Bengal by Indian TV channels.

The day before the seventh and last phase of polling during the General Election in 2019 drew to a close, The PM “meditated” in a cave in Kedarnath in Uttarakhand with a posse of photographers to capture him meditating and when he finally emerged from his ‘dhyaan’. Once again saturation live coverage was ensured for voters.

Before the advent of private TV channels, public broadcaster Doordarshan was mandated to give proportionate air time to all political parties before elections. But the ECI has failed to ensure a level playing field by not mandating an equal opportunity to the opposition to reply to the allegations levelled by the PM on a crucial day of polling. “Will the PM be doing an interview like this before every phase of polling in UP,” is a question that awaits to be answered.

With elections spread into several phases, there is nothing to prevent the PM from campaigning in constituencies where there is no polling on that day; and yet get his message across to voters in constituencies where polling is being held. While rules that require campaigning to stop 48 hours before the end of polling were framed before the advent of social media, TV and livestreaming, the Election Commission can put a ban on campaigning across the state also for 48 hours before each phase. But it has shown no interest in doing so.

If ANI’s interview with the PM on February 10 was by accident, doubts were removed when ANI again stepped up on the second phase of polling in UP on February 14 and released a video interview with the incumbent UP chief minister Yogi Adityanath. Once again, the interview was a political pitch directed at the electorate—with the opposition left out—and could have been telecast after the polling got over!

The day before February 14, when polling got over in Uttarakhand, an interview with the Prime Minister, given to pro-BJP Dainik Jagran, appeared on a two-page spread in the newspaper with a summary on the front page. Known as a Sangh Parivar mouthpiece, the newspaper in 2017 had carried an “online” exit poll during the election despite the ban on exit polls. It was an offence punishable with imprisonment. But the ECI took it lightly.

While the Election Commission has voiced its concerns in the past over ‘paid news’ and money power vitiating elections, it seems to be not only fighting a losing battle against money power but appears to have thrown in the towel.

Indeed, the model code of conduct needs to be revised, says Sanjay Kumar of Lokniti, in view of this growing trend. The provision mandating all campaigning to cease 48 hours before the polling ends, he points out, was intended to give voters time to reflect and weigh dispassionately parties, promises and candidates. But these days there is never a full stop.

On polling days, he feels, there should be a ban on rallies and interviews in newspapers and on TV etc.

In April 2014, when voting was underway for the Lok Sabha polls in Gujarat, the then PM-candidate Narendra Modi addressed the media after casting his vote and took selfies with a miniature lotus, BJP’s poll symbol.

The Election Commission had then said that it had seen video recordings and it was evident that it was “a political speech intended and calculated to influence and affect the result of elections in the constituencies voting today.”

The Commission’s exact words were, “By addressing the [meeting] today when the polling is going on in the entire state of Gujarat and in different parts of the country, Shri Narendra Modi has violated the provisions of Sections 126(1)(a) and 126(l)(b) of Representation of People’s Act 1951.”

Since then, such violations have been overlooked by the Commission. On February 14, wife of the Uttarakhand chief minister entered several polling booths in caps and shawls flaunting BJP’s symbol. But no action was taken. What has changed?

There are three specific provisions in the Representation of the People Act, 1951, which carry imprisonment for two to three years as punishment. But nobody seems to have been given the punishment so far.

One of them provides for three years imprisonment or fine or both if anyone promotes or attempts to promote “on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India”. But although inflammatory speeches were made at a conclave of ‘saints’ or ‘Dharam Sansad’ at Prayagraj (Allahabad) towards the end of January, ECI appeared unmoved. Was it informed in advance or was permission given by the ECI to hold the conclave is a question that remains unanswered.

The RP Act prohibits public meetings, processions, musical concerts, theatrical performances, entertainment or “display to the public any election matter by means of cinematograph, television or other similar apparatus” after campaigning comes to an end 48 hours before the end of polling. Violations are punishable with two years of imprisonment, fine or both.

Section 126 of the RPA Act also prohibits “exit polls” till the completion of the election and defines exit polls as “an opinion survey respecting how electors have voted at an election or respecting how all the electors have performed with regard to the identification of a political party or candidate in an election”.

It also defines the “electronic media” to include ‘internet, radio and television including Internet Protocol Television, satellite, terrestrial or cable channels, mobile and such other media either owned by the Government or private person or by both”.

Violations once again are punishable by imprisonment for two years or fine or both. But how many have been sent to prison?

The EC has also overlooked attempts to politicise the armed forces. It has overlooked attempts to politicise the late Chief of Defence Staff, General Bipin Rawat, as it had overlooked the politicization of the Pulwama terror attack in 2019.

The ECI does not appear equipped to cope with the increasing role of technology, money and manipulation. The RP Act and the Model Code of Conduct need to be modified to meet newer challenges to free and fair elections.

An emerging trend is that of serving civil and police officers resigning from service weeks before election and contesting as ruling party candidates to “serve the people” on a ‘broader canvas’!

There is no law against serving people! And these gentlemen, ambitious as they are, have indeed the right to serve. But with their goodwill and clout, and having possibly served the ruling party’s interests while in office, is the trend healthy or helpful? Does it ensure a level playing field and shouldn’t there be a cooling off period for them?

The Election Commission of India is too valuable an institution to be allowed to wither away. It needs to remain independent and, even more importantly, it should be seen to be independent.

(This article was first published in National Herald on Sunday.)