Poll panel not powerless despite claims

The falling standard of language, demeanour of leaders and political narratives set by parties to woo voters witnessed during the election campaigns for Maharashtra and Jharkhand state Assemblies and the alleged conspicuous inaction on the part of the Election Commission of India (ECI) have left many informed groups of people perplexed and worried. A perception seems to be building in society that either the ECI does not have enough means to exercise superintendence over elections and needs more powers or its independence has been seriously jeopardised.

As per Article 324 of the Constitution of India, superintendence, direction and control of all elections to Parliament and legislative Assemblies of every state and of the offices of President and Vice-President shall be vested in the ECI. The ECI’s independence has been amply ensured by providing that the Chief Election Commissioner shall not be removed from office, except in like manner and on the like grounds as that of a judge of the Supreme Court. The President or the Governor of state has been made liable constitutionally to make available to the ECI such staff as may be required by it. The whole election machinery of the state comes under the administrative and functional control of the ECI during elections. Even the jurisdiction of the courts has been barred in electoral matters during the poll process under Article 329.

Despite the fact that the ECI has been designed as an empowered constitutional body to ensure a level playing field to the candidates, electioneering is turning out to be a contest of unequals more than ever before. Contesting for elections has become such a costly affair that a majority of the Indians cannot even think of it.

In sizable pockets, votes are on sale for those who have the financial resources to purchase them. Black money plays a significant role in determining the outcome of the elections and poll-expenditure limits are observed in the breach for want of a strict and efficient enforcement mechanism. The Indian democracy has turned out to be a ‘limited democracy’, where only the rich or some privileged candidates, backed by strong political dispensations, have all the advantages and the right of an ordinary citizen to be elected as peoples’ representative stands compromised.

In the absence of the ECI’s coherent approach to curb hate speech during electioneering, peace in society is on the verge of becoming a casualty; inflammatory, derogatory and contemptuous words are being used with impunity against political opponents. The body language of leaders and political rhetoric, too, have crossed all levels of decency.

In 2019, the Supreme Court reprimanded the ECI for not taking action against candidates engaging in hate speech during election campaigns in Uttar Pradesh. Surprisingly, the commission had responded by saying that it had limited powers to take action in such matters.

While there are a number of provisions in the Bharatiya Nyaya Sanhita criminalising hate speeches, Section 123(3A) of the Representation of the People Act, 1951 (RP Act) classifies it as a ‘corrupt electoral practice.’ Additionally, the Model Code of Conduct, prescribed by the ECI, forbids political parties or candidates from engaging in activities that promote hatred among communities.

The ECI argument that it is ‘powerless’ in matters of hate speech does not appear to be sound in the wake of the SC judgment in Ramesh Yashwant Prabhoo’s case (1995) in which the disqualification of a Shiv Sena candidate, who made derogatory references to Muslims during the Assembly elections in Mumbai, was upheld. Further, while disposing of a public interest litigation, in the run-up to the 2024 Lok Sabha elections, the SC had asked the Law Commission to make recommendations about strengthening the ECI’s power to curb hate speeches.

Announcing freebies and making false promises to voters during elections amount to bribery and are prohibited under Section 123 of the RP Act; inertia on the part of the ECI on this issue is disturbing. In 2022, the SC constituted a three-judge Bench to look into its 2013 judgment in S Subramaniam Balaji vs State of Tamil Nadu, in which it was held that promises of freebies cannot be termed a corrupt practice. The matter is still pending before the apex court. The distribution of freebies from the public exchequer certainly puts the ruling party in an advantageous position.

The new phenomenon of the opposition parties and a cross-section of SC lawyers questioning the impartiality of the ECI and doubting the integrity of the electronic voting machines (EVMs) is a dangerous trend. They quote Elon Musk, saying: “We should eliminate electronic voting machines. The risk of being hacked by humans or AI, while small, is still too high.” The primary objection against the EVMs is the usage of the “black box software”; people and the judicial systems can neither access nor assess the integrity of this software, raising suspicions and accusations of manipulations.

A German constitutional court has already declared the 2009 ordinance that provides for the use of EVMs as unconstitutional.

Although the SC has dealt with the contentious issue of EVMs on several occasions, including in the cases of Subramanian Swamy (2013) and N Chandrababu Naidu (2019), many still believe that the ‘technical integrity’ of the EVMs remains to be settled conclusively through an open, fair and transparent technical audit. They argue that Elon Musk’s remark that “anything can be hacked” should not be dismissed casually.

KM Munshi, a member of the Constituent Assembly, in a debate on June 16, 1949, had stated, “If there is going to be democracy, the sovereign power of people must be in a position to elect their own representatives in a manner which is above suspicion, above partiality”.

The poll process has to be fair and above all suspicions because what is of paramount importance is the survival and legitimacy of the Indian democracy.