22/05/2019 5:58 AM IST | Updated 23/05/2019 7:19 AM IST

This SC Case Shows How Election Commission Dodged Accountability In The Lok Sabha Polls

From its failure to adequately address concerns about VVPATs and EVMs to failure to take action against top politicians in response to complaints of violation of the Moral Code of Conduct—the EC has courted controversy for multiple reasons this time.

NEW DELHI—Few days before polling began for the Lok Sabha election in early April, Harpreet Mansukhani, a Non-Resident Indian, filed a PIL in the Supreme Court seeking strict action against political parties if their functionaries give communal or casteist speeches during the election campaign.

In her petition, Mansukhani expressed concern that if communal speeches or casteist remarks were allowed to have any sway in the campaign, they would polarise communities and vitiate the whole process of conducting elections. She also pointed out that in the “digital world” statements made by politicians not only affect election in one constituency but across the country.

Thus, she requested the court to direct the Election Commission (EC) to take strict actions against political parties if their representatives deliver speeches and make remarks pertaining to religion or caste in media or in political rallies.

The court took the matter seriously and asked the election commission for its response.

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A closer look at the commission’s actions in the Apex court and outside of it over the course of the following month and a half of the bitterly contested election, shows why it has been widely criticised for failing to act as a neutral institution.

DIVIDED HOUSE: India's Chief Election Commissioner Sunil Arora, center, with other two election commissioners Ashok Lavasa, left, and Sunil Chandra, right, in a file photo. Lavasa has made his disagreement about the handling of the MCC Violation complaints public. 

The case is significant not only because it revealed how the EC was failing to do enough to clamp down on communal campaigning by influential politicians, the orders given by the Apex court while hearing the matter also prompted Election Commissioner Ashok Lavasa to dissent against the EC from within and insist that his dissent was made a matter of record. 

This dissent, reported repeatedly in short bursts in sections of the media, went on to make the allegedly partisan conduct of the Election Commission one of the biggest issues of the poll campaign. Though Chief Election Commissioner Sunil Arora has termed the close media scrutiny of the internal dissent within the commission an “unsavory” and “avoidable controversy”, criticism of the EC has not abated. 

Flip-flop in SC

On April 15, when Mansukhani’s petition came up for hearing, the Apex court took the EC to task and asked what action it had taken against communal speeches by Yogi Adityanath and Mayawati—both of whom had made communal speeches a week before while speaking in poll rallies in Uttar Pradesh.

A perusal of the Apex Court’s order of April 15 shows that the EC’s lawyer told the court that the power of the commission “is circumscribed to issuing of notice and upon consideration of the reply to issue advisories.” Only in instances of repeated violations of its advisories could the EC file a First Information Report with the Police for initiation of criminal proceedings, he said.

Beyond this, the April 15 order shows, the commission said it “does not have any power to deal with such instances of making of speeches provoking enmity or hatred between classes of citizens or for voting for any person on the grounds of religion, caste etc.”

When asked by the court, Senior Advocate Sanjay Hegde, appearing for Manuskhani, countered this claim saying the EC has vast powers under Article 324 of the constitution. The court said it will examine the issue of powers for the EC closely the next morning.

However, the court’s aggressive questions had already had the required effect. On the same day, the EC issued separate orders against Mayawati, Azam Khan, UP Chief Minister Yogi Adityanath and union minister Maneka Gandhi temporarily banning the four from campaigning for making communal speeches.

The next day, the order for April 16 shows, the SC found the action “appropriate” and the petitioner was given the liberty to approach it “as and when such necessity arises”.

Temporary fix

But the court intervention appears to have been a temporary fix. As Mansukhani told HuffPost India in an interview, “Giving 72 hours ban (on campaigning by the politicians) did not make any difference. The leaders made a mockery of it. It’s like punishing kids in a classroom.” When asked why she felt so, Mansukhani explained, “More strict action should have been taken. All the leaders who got banned, soon after, ended up making more communal speeches.” She said she was planning to approach the Apex Court again even though “damage is done”.

Senior Advocate Sanjay Hegde, who argued Mansukhani’s case, said the EC had been a “reluctant handler of complaints” of violations of the Model Code of Conduct.

Senior Advocate Sanjay Hegde, who argued Mansukhani’s case, said the EC had been a “reluctant handler of complaints” of violations of the Model Code of Conduct. To illustrate his point, he compared the action taken by the EC after SC’s criticism against Adityanath and others with the lack of action against Prime Minister Narendra Modi, BJP President Amit Shah and Congress President Rahul Gandhi. In the case of these three politicians, argued Hegde, “there doesn’t seem to have been any action with bite, as it were.”

He said: “The appearance of impartiality, of actually wanting to lay down the law, was not there. And then laying down the law to act in an impartial manner against all offenders was definitely not there.” This, he believes, was especially true of the complete ban on election campaign after violence during the roadshow held by Shah in Kolkata in the last phase of the campaign.

“They said peaceful campaign can’t happen so we will shut down everything. But we will shut down not immediately but after Prime Minister’s rallies are out of the way. This shows that the semblance of impartiality also was not attempted,” emphasised Hegde.

Condoning use of religion, armed forces for BJP’s election campaign?

What muddied waters further was the election commission’s apparent failure to clamp down on both the BJP and Prime Minister Narendra Modi’s campaign which, directly and indirectly, sought votes in the name of armed forces and Hindu religion.

For instance, Commodore Lokesh Batra (Retired) sent a written complaint to the Chief Election Commissioner Sunil Arora on April 10 about a BJP campaign hoarding erected on top of a building in Peddar Road, Mumbai. The hoarding, a picture of which was attached with Batra’s email, includes Modi’s face and the BJP’s slogan which appears to be seeking votes citing the government’s successful surgical strikes.

“Such hoardings send extremely misleading messages that recent activities were forced on the Indian Armed Forces to gain votes— construed as a violation of MCC,” wrote Batra in his complaint.

In response, the EC said its MCC guidelines are relating to advertisements published at the cost of public exchequer thus the advertisement does not violate the commission’s instructions or advisory regarding use of photographs pertaining to activities of armed forces. Speaking with HuffPost India, Batra responded to the EC reply with a multiple questions, “Does the ECI mean politicisation of Armed Forces activities for vote gains is ok if political parties use party funds? Strangely, the guidelines of 09 March and 19 March 2019, do not mention anything like that. Who is the EC trying to save?” 

In his complaint to the Chief Election Commissioner Sunil Arora, Commodore Lokesh Batra (Retired) sent this image of a hoarding placed on top of a building on Peddar Road, South Mumbai. "Such hoardings send extremely misleading messages that recent activities were forced on the Indian Armed Forces to gain votes," wrote Batra in his complaint. 

Batra’s case is one among several similar cases in which the election commission was seen as going soft on the Prime Minister and BJP Party president in complaints involving allegations about making use of slogans and statements pertaining to the armed forces and religion during the campaign.

In fact, all five instances where Lavasa, one of the three election commissioners, dissented against the majority decisions were pertaining to complaints received against Modi, Shah for either using references to religion or India’s armed forces while scoring a point over political rivals.

Indeed, critics and opposition parties consider the most recent use of religion in Modi’s election campaign to be the use of pictures from his visit to Kedarnath. As Hegde told HuffPost India, “While Mayawati only told Muslim voters to be careful with their votes, that was seen as an appeal to religion. But then the Prime Minister’s several, not so covert appeals to religion, including the Kedarnath trip into a Shiva Temple when he himself was contesting from Varanasi, city of Kashi Vishwanath, those complaints it (the Election Commission) seems to have glossed over.”

Neglecting violations brought to notice?

While the EC showed its ability to respond quickly to complaints about violations of MCC when the SC wielded its stick, it appears to have ignored concerns raised by the petitioner subsequently.

Mansukhani shared with HuffPost India a letter dated 8 May 2019 that she wrote to the EC whose subject line makes the body text self-explanatory. It read, “Persistent violation of the model of conduct by the leaders holding the highest office of India and mockery of Representation of People’s Act 1951 and contempt of the Supreme Court Order dated 15 th and 16 th April 2019.”

In the body text, the letter mentioned repeated violations by Uttar Pradesh CM Yogi Adityanath as well as Amit Shah and Narendra Modi. It specifically mentioned the references to ‘Jai Shree Ram’ made by Modi and Shah during the last phase of the elections in Bengal and termed them ‘violation of law’. Mansukhani closed the letter saying that “temporary ban is not a workable solution” and sought “stricter forms of action” to maintain decorum.

However, the EC did not respond to her letter. This, she said, leaves her with no option but to go back to the court.

Not just Mansukhani, independent poll watchers also have concerns about the manner in which the EC responded to complaints this time around.  “The election commission’s responses during this election have been slower than expected. The decisions on allegations of violation of MCC have sometimes taken two-three weeks which is not is the real purpose of MCC. The differences of opinion in the commission itself have also been unusual. All this makes this election somewhat different from the ones which we have had in the past,” said Prof Jagdeep Chhokar, Founder Member of the Association For Democratic Reforms.  

Failure to address EVM-related issues

If the EC failed to address complaints about the MCC violations satisfactorily, critics say it has been unable to address concerns relating to the Electronic Voting Machines (EVM) as well. The videos which began circulating early this week about EVMs being moved out of ‘strong rooms’ allegedly without following proper norms, gave rise to many claims and prompted former President Pranab Mukherjee to issue a public statement expressing concerns about possible “tampering of voters’ verdict”.

According to former Chief Electoral Officer of Bihar and well known Malayalam Author N S Madhavan, the controversy also highlighted one problem which has been paid little attention to.

He pointed out while speaking with HuffPost India that the EC has no control over production and sale of EVMs by the Public Sector Units which manufacture it. This makes it, in Madhavan’s view, “quite possible” that the EVMs in strong rooms which were used for actual polling be replaced by different EVMs not used for polling.

The suggestion being that the other EVMs would have votes recorded as desired by vested interests.

He noted that the election commission has put in place a few precautions to protect its own EVMs. For instance, giving a unique number for each EVM and sharing it with all political parties who put their volunteers for guarding the strong rooms where the machines are kept before polling.

But the precaution of allotting a unique number for each EVM, in the former IAS officer’s view, “loses its sanctity” since the EC has no control over production and sale of EVMs. “Since the election commission has not claimed patent on the EVM, nor do they have control over the sale of EVM, unique numbers are of no meaning. They should have absolute control over EVM machines. Each machine should be recorded in the election commission,” he said.

In its response to the controversy, the EC issued a statement denying the validity of the videos. “The detailed administrative protocols, security framework and procedural guidelines mandated by the Commission completely foreclose and pre-empt the possibility of any mischief or manipulation in the polled EVMs and VVPATs stored in the designated strongrooms under the 24x7 watch of the CAPF as well as the candidates,” it said. The jury is out on whether this, or any other statement in recent weeks, has brought a favourable public perception for the EC.