Folklore has it that a snake was told by a guru to not bite people. Some days later, the half-dead serpent, badly beaten by the local populace, complained to the sage, who calmly replied, “I told you not to bite people, I never told you not to hiss.” The Election Commission of India (ECI) is, today, probably in a similar position — it bites too rarely, if at all, and people are not scared when they hear it hiss.
Barring some grandstanding between the ECI and political parties during the Seshan years, the poll panel has generally worked in a cooperative spirit with governments and parties in conducting the massive jamboree of elections in India. But the erosion of faith in the sanctity of institutions and the development of a credo in politics that ‘anything is permissible’ has led to a perceived decline in the effectiveness of the ECI in wielding the whip in recent years, when the Model Code of Conduct (MCC) has been in force.
The past month has been witness to efforts, both covert and overt, to test the ability of the poll panel to make its writ run. A significant part of the blame for this unfortunate development has to be laid at the doors of the ruling party at the Centre. The announcement of a security-related missile test by a prime minister who is himself a candidate, the hasty scrambling together of a biopic and a web series on him and the launch of a TV channel (without any of the statutory permissions in place) dedicated to the name of the PM all represent, in one way or the other, efforts to influence the electorate. There is also the vexing issue of the armed forces being dragged into election propaganda, with senior ruling party functionaries going so far as to label them ‘Modiji ki sena’.
And there is the use of religious identities to gain electoral advantage by stoking fear of the ‘other’ in members of a particular community, with the Prime Minister taking the lead in his election speeches in Maharashtra.
At the heart of the issue is the actual use of its powers by the ECI to punish those who transgress provisions of the laws governing conduct during elections, whether they relate to use or abuse of money and propaganda, or the misuse of official positions. The model code has only a binding moral value, intended more to shame than punish. The expectation is that a censure, warning or advice will have an adequately chastening effect on the transgressor and will possibly negatively impact public opinion about a candidate.
The Indian Penal Code 1860 and the Representation of the People Act 1951 provide for punishments for a variety of offences ranging from bribery to promoting enmity between classes in connection with the elections. The MCC also forbids the misuse of official machinery, albeit without any punitive provisions. The rub lies in the ECI dealing firmly with infringements and bringing violators to book. Given our lumbering legal system, there is need for the ECI to move for setting up fast-track courts which can deal expeditiously with election offences. The poll body also needs to respond proactively to the use of mass and social media to unduly influence the electorate.
Article 324 of the Constitution vests all powers relating to the conduct of elections in the ECI. In a number of rulings, the Supreme Court has affirmed Article 324 operates in areas “left unoccupied by legislation” and the expressions “superintendence, direction and control” as well as “conduct of all elections” in the clause are the “broadest of terms” giving the ECI the powers “to cope with a situation where the field is unoccupied by issuing necessary orders”. With such strong judicial backing, nothing prevents the poll panel and the extensive machinery of the state working under its supervision in invoking provisions of the IPC and all other legislation to ensure free and fair elections, apart from issuing orders in areas where existing laws are silent.
It is heartening that the ECI has started to hiss and bite. But, given the atmosphere of impunity that most politicians and even some bureaucrats think they enjoy, the ECI must hiss far more often and use its fangs to far greater effect to instil respect, not just for the electoral process but for the rule of law, in India’s fractious political system. The constitutional authority set up by Sukumar Sen and emboldened by TN Seshan can do this effectively even without creating any undue ‘Sen-Seshan’.
(Ramani Venkatesan is a retired IAS officer with experience in the conduct and supervision of elections)
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