Why is EC mum in face of flagrant foul play?

The Election Commission (EC) justifiably enjoys a great deal of respect.  Over the years, it has established for itself a reputation of conducting elections in India — including that of the President and Vice-President of India — with commendable efficiency and dedication.  By and large, the impartiality of the EC has not come under a cloud, and its autonomy, as an institution, is not in doubt.

However, the efficacy of the EC is in question today.  This is not because of lack of good intent, but because the EC, for whatever reason, seems to be reticent when it comes to taking action in a dynamic and decisive manner whenever the model code of conduct (MCC) in force is violated.  

What is the cause of this reticence? Does the EC lack sufficient deterrent powers, or does it not want to fully use these powers even when the situation so demands?   This is a fundamentally important question, since the parliamentary elections — the world's largest-organised human exercise wherein the electorate is a staggering 900 million — is about to unfold, and it is imperative that people retain their faith that the supervision and conduct of these elections by the EC is done effectively and impartially.

The EC derives its powers from a categorical provision in the Constitution.  Article 324 vests it with the powers to “conduct” elections.  This is an all-powerful, omnibus clause.  In pursuance of this clause, the EC puts out an MCC for all political parties and candidates.  The MCC is not a wishy-washy document.  For instance, it clearly says that “no party shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.” It also says, inter alia, that “there shall be no appeal to caste or communal feeling for securing votes”.  These are unambiguous injunctions.  

The Chief Election Commissioner (CEC) is ensconced with full security of tenure.  Clause 5 of Article 324 says that “the CEC shall not be removed from his office except in like manner and on the like grounds as a judge of the Supreme Court (SC) and the conditions of service of the CEC shall not be varied to his disadvantage after his appointment”. This literally means that while in office, the CEC is near-unimpeachable, for — as in the case of an SC judge — he can only be removed when a resolution is passed by a two-thirds majority of both Houses of Parliament on the grounds of proved misbehaviour or incapacity. The CEC, and the two Election Commissioners, draw salaries and allowances at par with those of the judges of the SC.  

Why then is the CEC, and his two colleagues, so diffident and restrained in acting against open violations by the political class? The MCC is a mandatory document. The powers of the EC are unfettered under the Constitution.   And yet, what we see is the EC issuing at best a rap on the knuckles or an ineffectual reprimand when politicians flout the MCC. The most recent example is the EC’s response to Yogi Adityanath's attempt to politicise the Armed Forces by using the phrase “Modiji ki Sena”. Instead of taking suo motu deterrent action in the matter, the EC issued him a notice, and then merely said that he should “exercise caution” and be “more careful” in future references to the Armed Forces in his poll campaign speeches. When the process is so dilatory, and the deterrence so mild, is it any wonder that in spite of the EC’s notice to Yogi Adityanath for using such a phrase, a senior cabinet minister in the government, Mukhtar Abbas Naqvi, used precisely this very phrase again.  

Another example is that of Rajasthan governor Kalyan Singh.  He was video-taped openly saying that he is a BJP supporter, and exhorting people to vote for Prime Minister Narendra Modi. This is a grave violation of his constitutional mandate to be apolitical.  The EC took cognisance of this violation, and sent its views to the President of India, who passed them on to the home ministry for advice. Nothing further has been heard of the matter.  A similar event happened during the Assembly election in UP in 2012, when the CEC wrote to the President seeking his intervention in a matter in which two Cabinet ministers of the UPA government willfully and repeatedly flouted the instructions of the EC.  The President passed on the CEC's letter to the Prime Minister's Office (PMO).  Given the fact that the two erring ministers belonged to the then PM's party, it was not surprising that he did very little about the matter.  

The fact is that the world’s largest democracy needs a makeover of the role of the EC. If the EC does not itself proactively take deterrent action in conducting the elections, its role is weakened and its instructions rendered ineffective.  Frankly, our politicians — cutting across all parties — care little for epistles advising caution or expressing displeasure.  They will behave as per the rules only when they believe that the EC can and will punish them for deliberate violation of the MCC.  Such punishment could include suspension of campaigning for a defined period of time, or even countermanding of an election, or disqualification of the candidate. This fear of the law can be instilled by a powerful autonomous body deriving its powers from the Constitution, which the EC is.  

It is not surprising that the ordinary citizen misses the likes of T.N. Seshan, who instilled fear in the political class in the interests of the impartial conduct of elections.   Ultimately, the EC is as good as the incumbent at the helm, and it is for precisely this reason that the SC should take quick action on the matter pending before it on whether or not the CEC and the Election Commissioners should be appointed by a collegium, and not merely by choice of the ruling party in power.  The manner in which the EC currently acts reminds me of a couplet of Ghalib: Hamne maana ke taghaful na karoge lekin, khaq ho jayenge hum unko asar hone tak (I accept that you may not reject but yet I will be reduced to ashes by the time you react).