Context

For the past few months, the Election Commission of India (ECI) has been brought under increasing scrutiny for its diffidence and deference to the ruling regime. The Election Commission is ceding space to the ruling party instead of innovatively enhancing the residuary powers bestowed upon it by Article 324 of the constitution.

Incidents of concession from ECI

• Deferral of announcement of dates for the state assembly elections –  The ECI’s deferral of announcement of dates for the state assembly elections in five states in October last year, was largely construed as giving time to the prime minister to complete his public address in Ajmer, before the Model Code of Conduct (MCC) kicked in.

• EVMs– More recently, the charges of EVM malfunctions and the ECI’s reluctance to check a more substantial proportion of VVPATs.

• Not restraining political parties – and what appears to be its helplessness in restraining political parties – especially the ruling BJP – from violating the MCC, have diminished the stature of the ECI.

Model code of conduct

• The MCC is an important mode through which procedural certainty and deliberative content of elections are assured.

• A ‘firmed up’ MCC authorised by the ECI came into force in 1979.

• Importance of MCC

1. ?Despite the fact that it emerged as a moral code for voluntary adherence, over the years the MCC has acquired ‘supplementary legality’

2. Since the MCC itself does not have the force of law, it is enforced through executive decision-making.

3. It remains, therefore, ambiguous and uneven as far as the modality of implementation and certainty of execution, are concerned.

4. Since 1991, the Model Code has come to be seen as an integral part of elections.

5. It was also during this period that the MCC experienced its passage from an ‘agreed set of dos and don’ts’ among political parties, to a measure directed at restraining the party in power.

6. James Lyngdoh, the CEC of India from 2001 to 2004, describes this transition as ‘pitching into the party in power’.

History of bureaucratic neutrality in Elections

• Amidst allegations of misuse of official machinery by the ruling party, Nehru reminded all political parties to adopt the right means, in order to ensure fairness in electoral outcome. Speaking in Akola, in Maharashtra, Nehru reminded public servants to stay neutral.

• The Bharatiya Jana Sangha addressed itself to the party in power, through the idiom of civil liberties. Speaking at the All India Civil Liberties Conference in Nagpur on 25th August 1951, Syama Prasad Mookerjee claimed that the protection of civil liberties was a component of free and fair elections.

ECI’s Role in present Elections

• No legal sanction to MCC – The ECI has remained averse to giving the MCC a statutory character, preferring the advantage of ‘quick’ executive action and also to retain Article 324 as the source of its authority rather than re-assign it to a pre-existing parliamentary statute.

• Political parties’ disregard –  MCC compliance deficit being witnessed in the 2019 elections reflects the political parties’ disregard towards the MCC, as well as the inability of the ECI to retain its constitutional advantage through constant vigilance and stern action.

Conclusion

• In the past, successive ECIs have elicited compliance by public censure and invoking sections of the IPC and the Representation of the Peoples Act.

• Elections have become the site of unprecedented display of money, muscle and technology as power.

• Its concentration in any party gives it extraordinary and unfair advantage in electoral competition.

• The ECI must guard against ceding the space which it has extracted and affirmed by innovatively enhancing the residuary powers given to it in Article 324 of the Constitution of India.