Is the ECI Scared of Doing Its Job or Is It in Cahoots with Modi?

Only the most hardened partisan can think that the PM’s speech in Wardha was not a blatant breach of the MCC.

Is the Election Commission of India scared of doing its job?

On the evidence of its orders refusing to take action against Narendra Modi for flagrant and wilful breaches of the Model Code of Conduct, it is either that or it is in cahoots with him. The alternate theory, that they lack the most basic comprehension skills, can be safely ruled out because they had no difficulty in reading and understanding what other candidates who engaged in similar speeches had to say before banning them from election campaigns.

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Only the most hardened, one-eyed partisan can think that the prime minister’s speech in Wardha was not a blatant breach of the Model Code of Conduct.

Election Commission a Firefighter

The Model Code of Conduct is not a law. It is a list of do’s and don’ts agreed to by the parties as a common standard on the basis of which the ECI takes action against candidates who, in its view, vitiate the atmosphere during the elections.

The Representation of the People Act, 1951 still is the law on what can disqualify or punish candidates from elections. Specifically, Section 125 which makes it an offence to promote enmity or hatred between different classes of citizens during elections time.

Likewise, Section 123 treats sectarian appeals during election as a “corrupt practice” which can get a candidate disqualified. Obviously this isn’t an automatic process – it can only come at the end of a judicial process where the candidate has an opportunity of being heard.

So what’s the point of the ECI’s powers under the Constitution and the MCC?

To use a recent analogy made by former CEC, SY Quraishi, the ECI is a firefighter – one whose job is to douse flames and take immediate action, rather than investigate the cause of the fire or hold someone responsible. Given its enormously wide powers under Article 324 of the Constitution, the ECI can do anything within its powers necessary to ensure a free and fair election – short of actually breaking a law.

So we come back to the five“clean chits” issued by the ECI to Modi’s speeches so far. Keep in mind these are only five of eleven complaints made by the Congress to the EC and the remaining complaints remain to be adjudicated.

EC Choosing to Ignore Material

First, let’s get the obvious ones out of the way – as alarmist and stupid as it sounds, bragging about readiness to use nuclear weapons would not exactly fit within the scope of the ECI’s direction to parties not to campaign in the name of the Indian armed forces. The point of the MCC is not police the idiocy or emptiness of candidate’s rhetoric but to ensure it does not cross the lines of the law or propriety.

Far, far less defensible are the ECI’s excuses (I hesitate to call it “reasoning” because that would stretch the word’s meaning too far) for why it did not want to take action against Modi for his speeches in Wardha and Latur. When Modi in Wardha spoke about Rahul Gandhi standing from “minority majority” constituency, only the extremely clueless or the mendacious can claim that he is not making explicit references to religion.

The meaning and import of the speech is clear – that Rahul Gandhi’s candidature from Wayanad is somehow illegitimate or anti-Hindu because it is a constituency with a large non-Hindu population. Such sort of dog-whistling is routine for politicians and it is not as if the ECI is completely unaware of them – witness its sanctioning of Yogi Adityanath for the “Ali-Bajrangbali” comment.

Less subtle and more direct sectarian rhetoric such as those made by Mayawati, Maneka Gandhi and Navjot Sidhu have also received censure from the EC. It is not as if it is unaware of the polarised times we’re living in, highlighting even more the need for vigilance on its part. Yet, when it comes to Modi’s speech, the ECI has consciously chosen to ignore the material before it.

Making Silly Excuses for Modi

Even sillier are their excuses for Modi’s blatant appeal in Latur to first time voters to vote in the name of the “Pulwama” and “Balakot”. Even from as far back as 2013, the ECI has been telling parties not to use the armed forces or invoke their names for election campaign purposes. This was reiterated earlier this year as well in light of the BJP’s attempts to use Captain Abhinandan’s image.

In this case, the state and district election officers had correctly pointed out the problematic parts of the speech – only to be overruled by the ECI. The excuse offered was that only five lines were problematic and the whole speech was fine.

It is an absurd approach that makes no sense given the EC’s task – it is not a cultural critic or a censor tasked with carefully nuanced appreciation of the work. Its job is to ensure that nothing candidates say or do can affect the atmosphere in which elections are held.

The EC’s track record in enforcing the MCC in the general elections this year has been fairly dismal. This was after it had to be goaded into action by some harsh words from the Supreme Court of India. Its actions thereafter smack of half-heartedness and trying to create a false perception of equal handedness. In doing so it has made a mockery of its mandate to hold free and fair elections.

(Alok Prasanna Kumar is an advocate based in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)