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Has the Election Commission become a Soft Target ?

Kingson Chingakham



With around 900 million eligible voters, India goes to poll to elect the head of the state and other parliamentarians at the Lok Sabha. Simultaneously, the legislative assembly elections of four states- Andhra Pradesh, Arunachal Pradesh, Odisha and Sikkim will take place. The Election Commission of India (ECI) has a very important role to organize the elections free and fair. Although, the ECI has been successful in organizing the elections free and fair, it nonetheless, is not deprived of limitations and criticisms. Recently, the ECI has been brought to the light regarding the malfunctions of EVMs and how it is vulnerable to hacking. The power and autonomy of the ECI has been questioned there and again. A number of problems needs to be addressed to make it more effective.  

Model Code of Conduct 

Once the ECI announces the dates of the polls, the Model Code of Conduct (MCC) comes to force immediately. MCC can be defined as set of guidelines issued by the ECI for conduct of political  parties and candidates during elections mainly with respect to speeches, polling day, polling booths, portfolios, election manifestos, processions and general conduct.

Here, it is important to note that the MCC is voluntary and not legally binding. Since it is voluntary, we can see politicians and political parties breaking the guidelines frequently. There have been number of cases where the politicians have made communal and sexists remarks during the election campaign but have gone scot-free due to the inaction of the ECI in the past.

Why the Supreme Court had to intervene?

The Supreme Court (SC) does not usually interfere in the functioning of the ECI during elections. But recently, in April, the SC had to intervene to send a message that the ECI is endowed with a considerable power. The SC sent a very strong message to the ECI to act against the errant politicians and show them that it is no longer a toothless body and it, in fact, can bite.

Due to the intervention of the SC, the ECI censured Uttar Pradesh Chief Minister Yogi Adityanath and Bahujan Samaj Party chief Mayawati for making communal remarks, and barred them from campaigning for 48 hours and 72 hours respectively. Similarly, the ECI also barred Maneka Gandhi from the BJP and Azam Khan from the Samajwadi Party from campaigning. The violation of the MCC is nothing new in the Indian elections. But what is more unfortunate is that the SC had to intervene to make the ECI realize its power. Actions could have been taken by the ECI without creating judicial ruckus.

Similarly, another case where the SC had to intervene is regarding the releasing of the movie based on the biopic of PM Narendra Modi and web series based on the PM that was streamed on Eros Now. The case of Namo TV was also taken up. Movies have become a tool of election propaganda. Web series can influence a large number of youth population who are hooked to online streaming. In this kind of scenario, it was very obvious that the ECI could have postponed the release of the movie and the web series by themselves without the help of the SC.

Need of an amendment

The Representation of People Act, 1951 needs to be amended at the earliest and grant more power to the ECI. But most of the political parties do not have the will to bring the changes as the status quo on this helps them. Changes in the electoral system has to come from the SC and the ECI. For example, the ECI has the power to register political parties but it does not have the power to de-register any political parties.

The ECI has the power to restrict the election expenditures of the individual candidates but it doesn’t have the power to restrict the election expenditures of the political parties. The funding of political parties is one contentious issue. The non-transparency of the political parties regarding the party funding and expenditures have caused the increase in the demand of inclusion of political parties under the ambit of Right to Information (RTI). But most of the political parties, unanimously, have reacted against the proposal of inclusion of political parties under RTI.

Issue of Electoral Bonds

Another case where the SC had to intervene was the case of Association for Democratic Reforms v Union of India regarding Electoral Bonds. The SC passed an interim order directing that political parties were required to provide the ECI all the details of funding received by them through the electoral bonds scheme. Electoral bonds are one classic example of how the funding to the political parties have been clouded with secrecy. In this case, the political parties know the donor, the banks will have the donor details and the donors know for whom the donations have been done. But the public, at large, do not have any details. Most of the donations from the corporates are done through the electoral bonds because they do not want to risk themselves with the opposition parties. It is also worrisome how the corporates can influence the policy formulation if this remains unchecked.

This is why most of the former election commissioners and other psephologists have demanded for a body in the form of National Election Funds. This will chart the ways to state funded elections. Though this is questionable, whether the state should really fund the elections ? And, undoubtedly, the ruling political party will have an edge over the other political parties. But this is one way to bring transparency in the funding of the political parties. The members of the political parties can donate to their respective political parties in which they are affiliated to. But the public donations should go to a body like National Election Funds where the parties could utilize the funds for the elections.

What the ECI needs to do?

The electoral system needs a huge change in our country. The part of legislative changes need to come from the Parliamentarians (which is doubtful). The ECI should be given more powerful. For example, the ECI should bar candidates with multiple criminal charges from contesting elections. The ECI should also check how one candidate contest from two constituencies. The ECI should allow a candidate to contest from one constituency only as it deprives others from contesting in the elections. The ECI should also jump in to give a time frame to the political parties to release their election manifestos. The ruling BJP party released their manifesto just 3 days before the first phase of polling.This did not give much time to analyze and discuss in public the pros and cons of the manifesto.

The appointments of Chief Election Commissioner (CEC) and other Election Commissioners are bit controversial. Currently, the CEC is appointed by the President of India based on the recommendation of the incumbent Union Government. This needs to be changed as the CEC could act in the interest of the incumbent ruling political party that appointed him. The CEC and the other Election Commissioners should be appointed through either a collegium of non-political parties or a collegium consisting of the ruling government, the leader of the opposition party, the Chief Justice of India/ Judges of the Supreme Court and other imminent personalities.

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