The Election Commission of India has, in recent days, faced criticism for failing to check violations of the model code of conduct by political parties and candidates contesting the ongoing Lok Sabha and four state assembly elections.
The EC is a constitutional body, which means its existence in the eyes of law is through the Constitution, and not any other law passed by Parliament. All constitutional bodies are only answerable to the Constitution and in case of dispute, to the constitutional courts — the high court and the Supreme Court. The constitutional status ensures the poll panel operates independently of the government and is able to conduct free and fair elections. To say that the EC has lost its fangs is something that cannot be easily understood under the umbrella of rule of law in India.
Article 324 of the Constitution vests powers for “superintendence, direction, and control of elections…” to the EC. The poll panel enacted the model code exercising the powers under this provision. The code, which kicks in the day elections are called, not only governs the conduct of political parties and candidates, but also the government machinery.
The point is, the conduct code is similar to any other set of rules such as the Indian Penal Code. The mere presence of the IPC does not mean there is no crime or violations. A robust sanctioning system ensures its compliance. The mere occurrence of crime does not vitiate the sanctity of the criminal justice system and the IPC. Similarly, conduct code violations do not mean the EC has lost its fangs, as long as it keeps sanctions in place.
Its decision to put off — till the end of the poll process — the release of the biopic on Prime Minister Narendra Modi shows the election panel’s authority is well in place. Its campaign ban on Yogi Adityanath, Mayawati and Azam Khan is also an assertion of its authority.
The sanctioning, however, is a bit tricky. The poll panel is a constitutional body but the code of conduct is not a statutory enactment. Therefore, its enforcement can’t be demanded ipso facto in a court of law. But, there are several overlaps between the conduct code violations and those of other statutory enactments such as the IPC and the Representation of People Act. Hence, if the EC chooses, it can invoke prosecution or proceedings under these statutes and they give it enough authority to get its way.
Moreover, the poll panel is the regulator of the democratic process and any disproportionate punishment for a code violation might have a substantial democratic cost. For instance, barring a candidate or a party from an election severely truncates the organic demand and movement of democracy. Irrespective of whether the candidate or the party wins or loses, the cancellation of candidature will interfere with the statistics of the election and will unquestionably have an indirect effect on the outcome.
While deciding whether an act is a violation of the conduct code or of some other provision, the poll panel treads a fine line between a genuine appeal to the electorate and something that vitiates the very same appeal or if it is coupled with mala fide.
Also, there can be an electoral pitch that doesn’t violate the code but is morally wrong in the opinion of a section of society. In such cases, the poll panel has no legal or moral responsibility to act. A parallel can be found in tax administration, where there is tax avoidance, which is legal, and tax evasion, which is illegal. It might be morally wrong to validly avoid paying tax, but it is not illegal. This is akin to an appeal to the voters based on the defence and security policies of the ruling party. To some, it may appear to be immoral, but it is not illegal. Whether something is moral or immoral is subjective, hence, constitutional authorities such as the election commission can only act when there is an explicit violation.
The election commission is aware of the ramifications of its actions, so it usually takes a liberal view when it censures candidates or parties but it doesn’t mean it has lost its fangs.
That said, the code is more of a moral document than a legal one. Its enforceability is based on the moral appeal to the parties, something which is expected of a mature democracy.
Whether India is a mature democracy or not cannot be objectively answered today. Till then, the poll panel is doing a fine job of conducting elections in India.
(Raghav Pandey is an assistant professor of law at Maharashtra National Law University, Mumbai)
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