Election Commission of India: Willing to wound, yet afraid to bite

The Election Commission of India itself has sought from time to time to distance itself from the Government. In its own recommendations and in the reports of the Law Commission, the EC has argued eloquently for greater Independence and less interference from the Government. It has for some time sought an independent secretariat so as to do away with government employees sent on deputation.

The Commission has been asking for Constitutional protection given to the Chief Election Commissioner when the EC was a single-member body, extended to the other two Election Commissioners, now that it is a three-member body. The Commission has also been asking for its funds to be ‘charged’ on the Consolidated Fund of India like other similar bodies like the CAG and the UPSC, so as to reduce the Government’s control over the Commission.

But the BJP Government at the Centre, with a comfortable majority in the Lok Sabha since 2014, unlike the coalition governments India had from 1989 onwards, has shown little inclination to bring about the necessary constitution amendments, its priorities clearly being to criminalise Triple Talaq and the Citizenship Amendment Act (CAA). It must be said to the credit of the ECI that despite severe limitations and the omnipresent threat of interference and intimidation by the ruling party, it maintained by and large its Independence and conducted free and fair elections. Or else, the results could have been different in 2014.

But since then, doubts have surfaced about the ECI’s Independence and its ability to curb ‘money power’ in influencing elections. It appears to have failed to ensure a level playing field by allowing the ruling party to outspend other parties and have its way in campaigns, scheduling polls and in its disproportionate use of TV and other media.

While the Government reluctantly agreed to pay several thousand Crores to install VVPAT (Voter Verified Paper Trail) units in the last general election, the Election Commission has virtually defeated the purpose by refusing to tally the paper slips with the count on Electronic Voting Machines. VVPATS are effectively paper ballots and counting them may involve more time but having invested public money in it, it makes little sense not to make use of them.

Model Code of Misconduct: It is worth recalling the ‘minor’ violation of the Model Code of Conduct in the 1971 general election, which led to the Allahabad High Court judgment unseating the then Prime Minister Mrs. Indira Gandhi. The charge against her then was that her election agent had started working for her after resigning from government service but before the resignation was formally accepted. In comparison, violations of the Model Code of Conduct now are far more brazen and more rampant. But the Election Commission and the Judiciary appear far more helpless. India’s ‘independent’ election commission increasingly seems to be turning a blind eye to the malpractices of the party in power. The code of conduct now seems to apply to every party other than the BJP.

There have been complaints against BJP leaders including the Prime Minister himself for violation the Model Code of Conduct during State Assembly elections and even during last year’s General Elections. Each time the complaints have fallen on deaf ears at the ECI while the Prime Minister himself kept violating the code even more brazenly. In the most recent elections, i.e., the Delhi Assembly 2020 polls, several BJP leaders and even a Union Minister made comments that were communally charged and incited people to commit violence.

Normally, these would be grounds for criminal proceedings but the ECI did not find them even violating the code. Thus, BJP leaders like Kapil Sharma, Anurag Thakur and Parvesh Verma got away with a mild rap on the wrist from the ECI. No stringent action was taken against these violators even as video evidence clearly documented their violations.

BJP-ECI nexus: I had put out evidence a few weeks ago which showed how the Chief Electoral Officer (CEO), Maharashtra had hired social media agencies directly linked to the IT cell of the BJP. The ECI responded by seeking an immediate report from the CEO, Maharashtra. It turned out to be an eyewash to bury the issue.

The CEO put out a feeble explanation that the agency was appointed not by the ECI but by the Directorate General of Information and Public Relations of Maharashtra Government headed by BJP’s Devendra Fadnavis then, or on its recommendation!. The ECI not only accepted this explanation and failed to order a probe but also failed to address misgivings that such hiring was unethical, involved conflict of interest and could compromise the integrity of the voters’ data with the Commission. On further investigation, I found that the ECI itself had engaged an advertising agency closely linked to the BJP government and leaders. It had also participated in BJP’s election campaigns.

Merely helpless or electorally bonded?: In January 2018, the Modi government notified the controversial Electoral Bonds Scheme. In one stroke it legitimised donations from abroad to political parties and allowed anonymous donors to purchase bearer instruments called electoral bonds and donate them to a political party of their choice.

While a legal challenge to the scheme has been pending before the Supreme Court of India since 2018, The Election Commission, like the Reserve Bank of India, put up only token resistance. Both formally opposed the scheme as RTI replies have revealed but allowed it to become operational even before the Supreme Court heard the parties and gave its decision. Some observers believe the EC had the authority to declare it unacceptable but didn’t. Nor have apprehensions that the scheme enabled corporate bodies and individuals to pump laundered black money into political parties, been addressed.

In His Majesty’s service: It is now public knowledge howThe Income one of the Election Commissioners Ashok Lavasa has been hounded. Inquiries were reopened of old cases long buried and selective leaks in the media were used to tar his reputation. The Income Tax department claimed to be investigating his wife’s tax returns. These inquiries came suspiciously close to Lavasa putting in a dissenting note on giving PM Modi a clean chit in a complaint alleging violation of the model code.

The campaign culminated with the Modi government dangling an overseas posting to him, obviously to ensure that he does not become the CEC even for a brief period if he could be persuaded to leave the Commission and take up the assignment.

Appointment of Chief Electoral Officers in states has also been questioned. In Maharashtra, an IAS officer was appointed as the CEO despite a pending corruption probe against him by the Central Vigilance Commission. When the issue was raised by the opposition, ECI claimed that CEOs in states were always appointed on recommendations of the ruling state government. There are other issues that cast a cloud on this institution. But there is sadly little or no public debate yet.

(The author is an RTI activist and former foreign correspondent based in Mumbai)