No more soft options to ECI for enforcing election code of conduct

Election Commission of India (ECI) has full powers to enforce election code of conduct. 2014 elections will be remembered for hate speech, communally charged expressions, deliberate play of divisive politics and lack of political civility. There have been expressions from politicians which seek to dent the apolitical feature of our army. The support of the voter has been sought on grounds of religion and communal feelings. A candidate in UP has advocated for eschewing secularism and casting vote on communal considerations. Another candidate in Bihar has threatened that any opposition to its party would invite expulsion to other countries. Open threats have been given for demarcating residential premises based on religious belief.

The judicial pronouncements have already conferred on ECI all powers necessary for free and fair conduct of elections flowing from Article 324 of the Constitution. In Bhim Singh vs Election Commission (1996), the apex court observed that EC can exercise any power which is necessary to achieve the objective to maintain a proper atmosphere conducive to free and fair election. The judgment further clarified that the EC could exercise beyond what is conferred in the conduct of election Act and Rules. Justice VR Krishna Aiyar in Mohinder Singh Gill vs the Chief Election Commission (1978) observed that the EC being the creature of the Constitution cannot be restrictive as the Commission has to address infinite challenges that may emerge from time to time in such a large democracy as ours. Hon’ble Justice observed “the Chief Election Commission has not to fold his hands and pray to God for divine inspiration” or to look to any external authority for the grant of powers to deal with the situation.

The recent communication of ECI dated 11.4.2014 on the compliance of Election Code of Conduct is only a repeat of earlier advice given to State administration and election machinery. It is totally inadequate to curb the growing defiance of model code of conduct. The apex court disturbed with hate speech has asked in March 2014 the Law Commission to define the expression “hate speech” and make recommendations to Parliament to strengthen the ECI to curb the menace of hate speeches.

We need to pause and question if India of 2014 and beyond should permit hijacking of growth and developmental agenda in favour of social and religious hatred thus seeking mass conduct based on social and religious belief. BJP has committed “any activity which disrupts the integrity of the nation cannot be in the interest of any segment of the society or any religion of the country…” The Indian National Congress believes that economic growth and communal harmony and economic growth and social justice must always go hand in hand with assurance for equity and opportunity to all. The big question is the role of the parties in ensuring minimum decorum during the campaign period. Do the parties have any compunction to withdraw the candidates who are openly in defiance of electoral code. Why can’t the political parties withdraw the symbol given to the candidate if there is an impartial determination by the Election Commission that the candidate concerned has grossly violated the election code of conduct! “Winnability “consideration alone without caring for the criminal antecedents of the candidate or his offending behavior promoting social disharmony will endanger democracy in the long run.

Given the wide powers both defined and undefined, the Election Commission can direct political parties to withdraw candidates who vitiate the atmosphere after specific warning. It can even direct State Governments to detain such a person. Filing of FIR against any person assessed guilty of vitiating the atmosphere is grossly ineffective, as such FIRs don’t reach any conclusion in terms of penal sentencing and remain only a proforma threat. The Election Commission can also require the political party to ensure compliance of the election code of conduct from those who are allotted party symbols. Non-compliance should lead to withdrawal of symbol. Under exceptional circumstances even the countermanding of election would be justified in the larger interest of our democratic process.

ECI cannot be a passive spectator to fast spreading inflammatory and provocative speeches. Mere warning to the violator of election code or placing a ban on electoral canvassing is grossly inadequate to effect course corrections. There is a wide belief that the ECI while being successful in organizing elections has not come with heavy hand against those who are challenging the very essence of Indian democracy. India of today requires a very vigilant EC who can exercise its powers pro-actively.

By (N. Misra is retired Secretary to the Government of India

(This article was published in Mail Online India on 29 April, 2014 )