Dealing with poll code violations: EC has the teeth, why doesn't it bite?

The Constitution gives the Election Commission wide powers to deal with poll code violations

The Election Commission’s recent flip-flop in the Supreme Court over the powers it has — and does not have — pertaining to violations of the Model Code of Conduct has taken legal experts by surprise. 

In its submissions before the top court on April 14, the poll panel had said that it does not have powers beyond reprimanding politicians in cases of hate speech and code of conduct violations. That had prompted the chief justice of India to note that the apex court would examine the EC’s powers in this regard. However, within 24 hours, the poll panel banned four heavyweight politicians from campaigning for varying periods of time and submitted to the court that they have “discovered” they had powers. 

Legal experts noted that the Election Commission always had these powers. Article 324 of the Constitution gives the poll panel wide sweeping powers when it comes to conducting free and fair elections in India. “Even the courts do not interfere with the decisions taken by the poll panel with respect to conducting elections,” said Alok Prasanna Kumar, senior resident fellow at Vidhi Centre for Legal Policy in Bengaluru.

According to Kumar, the landmark judgment in Mohinder Gill vs Chief Election Commissioner (CEC), even the Supreme Court has noted that the CEC cannot “fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties” when it comes to conducting free and fair elections. He adds that the powers granted to the poll panel under Article 324 are as wide as those with the central government during the times of national emergency.

Article 324 of the Constitution lays out the powers vested in the Election Commission with respect to the “superintendence, direction and control of elections”. The terms have deliberately not been accurately defined so as to enable the poll panel to use it to the maximum effect possible during the elections, experts said.

“It has been left that way. Our constitution makers thought of it and left it that vague, making it easy for the poll panel to use any power necessary based on the ground realities of that moment. It is a case of Casus Omission (Omission in Law) and can be interpreted in any way,” a constitutional expert, who did not wish to be named, said.

Apart from these, Article 324 firmly establishes that any election commissioner or a regional commissioner shall not be removed from office except on the recommendation of the CEC. While the powers of the poll panel are not in question, the only bone of contention is as to why these powers are not being used efficiently, asked Anil Verma, head of non-government organisation Association for Democratic Reforms (ADR).

“Under Article 324, the Election Commission can do anything short of de-recognising the party. But the response of the poll panel these days has been tardy and selective. If they acted swiftly, there would have been no confusion with respect to their powers,” Verma said.

The perception created by the poll panel owing to such delays also matters as the CEC is not sitting there just to enforce the law, Kumar said. “The perception created by the Election Commission should also be about free and fair elections. It is the same reason why the courts, despite knowing that a certain case has no merit, hear the petitioner. It creates an impression that one is being heard by the law,” he said.

The poll panel, however, should not be the only one responsible for free and fair elections, Verma said. “Why are political parties behaving the way that they are? During elections and otherwise, they behave like rogues and get away with it. They should also behave responsibly,” he said.

Most experts agreed that the spotlight on the EC’s powers is largely due to the reluctance of the CEC and his team to exercise their powers, unlike in the past. “It is not every day that you have a J M Lyngdoh or a T N Seshan at the helm of affairs. We are not sure if the current poll panel lacks the bite or just does not want to use its teeth,” noted an expert.