Lok Sabha polls 2019: Does the present EC appear weaker than earlier ones?

Statistics with the ECI show that of the 40 alleged violations of model code of conduct decided by it, 29 have been about the ruling BJP

How has the Election Commission of India (ECI) fared in this edition of the general elections as a regulator? These elections have been surrounded by largest ever number of reported violations of the model code of conduct. Have the reported differences between the Commissioners in deciding some of those, especially concerning alleged violations by Prime Minister Narendra Modi and BJP president Amit Shah, made it appear a weaker one, compared with earlier eras? Or does it come off better than the public spat in the run up to the 2009 polls, when chief election commissioner (CEC) N Gopalaswami asked for the removal of election commissioner (EC) Navin Chawla. It did not happen and Chawla went on to become the CEC conducting the 2009 elections. At present, there is no word if the difference between CEC Sunil Arora and EC Ashok Lavasa would become as acute, though a source said there are no reports of absence of communication between the two incumbents. The third EC is Sushil Chandra. 

What the two episodes do reveal is that the stature of personalities matter when evaluating the performance of the Election Commission, unlike that of other regulators. As the OECD principle for regulators says, “Regulatory independence is not an end in itself but a means toward ensuring effective and efficient public service delivery by market players”. In the case of the election commission, the delivery depends entirely on the personality of the regulator. 

In the case of Chawla, Gopalaswami made the dramatic recommendation to the Supreme Court, just three months before the CEC was to retire. It was based on a petition by the BJP, which had complained that Chawla was perceived to be close to the ruling Congress party. No comparable episode has happened in 2019, but there are media reports of a worrying absence of unanimity over some of ECI's decisions on complaints about violation of the model code of conduct. The orders, incidentally are still not up on the ECI website. A senior level source said the Commission is still debating whether the orders should be put up along with the differences. 

Statistics with the ECI show that of the 40 violations of model code of conduct decided by it, 29 have been about the ruling party, BJP. The Commission has so far got 46 such complaints against all parties in the fray -- the largest number of reported MCC violations in Indian elections. Also among the 29 concerning BJP, the Commission has found 15 cases merited some type of adverse actions like ban on campaigns, FIRs with the police and so on. The tally of complaints is the highest for any general elections in India. Of the ten cases where no action has been suggested, nine concern Modi and BJP president, Amit Shah.

The point about independence is brought home succinctly by “ACE project”, a United Nations supported organisation. It was set up by the International IDEA, the International Foundation for Electoral Systems (IFES), and the United Nations Department of Economic and Social Affairs (UNDESA) as the Administration and Cost of Elections project in 1998. ACE monitors best practices for elections across the world. 

About ECI, the ACE characterises it as the “embodiment of independence”. It goes on to add that the “well thought-out, broadly worded provisions contained in article 324 of the Indian constitution, a supportive judiciary, an active media and Indian public opinion, and the stature and independent attitude of some of the individuals who have headed the ECI has given it the independence and reputation it enjoys today”. 

Note the emphasis it has placed on the “stature and independent attitude” of the CEC and other ECs. This term has been sparingly used by the UN supported agency for only a few countries. In a comparison among 200 countries, ACE notes that ECI is an independent entity; for comparisons, the US agency is a government run one. 

As one of the senior ECI official told Business Standard, the evidence of the extent to which the organisation has pushed to make this election fair is the daily public report card on seizures of money, narcotics and liquor it has made so far. Till Wednesday, the seizures have reached Rs 3,360 crore and the final phase of elections is still 13 days away. This sort of daily reports was not introduced till recently in the ECI armoury. 

However as the ACE report again points out a key input to ensure there is “electoral integrity” is to determine who monitors those responsible for enforcing election integrity rules, that is, the CEC and the two ECs themselves. “As with other aspects of the process, enforcement may be tainted by partisan politics, subverted by money or power, rendered ineffective, or marred by errors. To ensure that enforcement plays its role in maintaining election integrity, it must be monitored and supervised, exactly like any other part of the process”. As of now there is no outside agency in place to decide whether the ECI has been fair or foul.