Election Commission of India. (Source: ECI’s website)

Will The Lok Sabha Polls Put Election Commission’s Powers On Trial?

From Yogi Adityanath calling the general election a “Ali-Bajrang Bali” contest between Muslims and Hindus to Mayawati’s appeal in Deoband to vote for the BSP-SP-RLD alliance and Azam Khan’s misogynistic ‘khaki underpant’ comment on actor-turned-legislator Jayaprada, campaigning is not only testing the lows political leaders can stoop to but also what the Election Commission of India can do to reign them in.

Last week, the commission told Supreme Court that it can’t do much. It said that its power for acting against violations of the Model Code of Conduct—such as hate speeches on grounds of religion or caste—is restricted to issuing notices and upon consideration of the reply, to issue advisories.

Only in case of repeated violation of the advisories, the Election Commission has the power to file a First Information Report with the police for initiation of criminal proceedings.
Election Commission To Supreme Court

But Chief Justice of India Justice Ranjan Gogoi’s warning to summon the Chief Election Commissioner spurred the body into action. Within 12 hours of telling the apex court that it can issue only advisories, the commission banned politicians across party lines from campaigning. The politicians banned from campaigning include sitting Uttar Pradesh Chief Minister Yogi Adityanath, BSP President and former UP CM Mayawati, Samajwadi Party leader Azam Khan and Union Minister Maneka Gandhi.

There might be some negative perception about the commission’s promptness in acting against errant politicians but this is due to the time taken to gather information from the field, former chief election commissioner OP Rawat told BloombergQuint. The commission has taken adequate steps and we will see an impact on the ground, he said.

It will have an impact because politicians have only 14 days to reach out to the electorate and out of 14 days, if you are banned from speaking to the public for 2-3 days, it’s a huge loss to them.
OP Rawat, Former Chief Election Commissioner

How Powerful Is The Election Commission?

Article 324 of the Constitution grants the Election Commission powers to conduct elections. Section 123 of the Representation of People’s Act lists the corrupt practices in an election and includes attempts to promote feelings of enmity between any class of citizens on grounds religion, race, caste, community, or language. Section 125 of the same Act mandates a 3 year imprisonment or a fine or both for violation of Section 123.

Senior Advocate Sanjay Hegde, who represented the petitioner before the Supreme Court seeking action against errant politicians, pointed out that the power of the Election Commission in such cases extends beyond just issuing advisories and notices.

Under Article 324, the entire superintendence of free and fair elections is with the Election Commission. The Supreme Court in a judgement in the 1970s had said that apart from the provisions of Representation of People’s Act, there is a vast repository of power with the Election Commission. The EC, in a situation where an action is necessary to ensure free and fair elections, is authorised to act. 
Sanjay Hegde, Senior Advocate, Supreme Court

The Supreme Court this week again seems to have accepted the argument, Hegde said.

Traditionally, the Election Commission used to act only when there were allegations of monetary corruption against politicians and action against their speeches was left to the courts through election petitions, senior advocate CU Singh said.

Appeals on the ground of religion is an express violation of Representation of People’s Act of 1951. Most of these acts were challenged through election petitions to challenge the actual election results. The problem with this was that after the election petitions get filed, they take time to get heard in the High Courts. The candidate then goes to the Supreme Court and by the time it’s heard the term is over. Then the case is only heard for disqualifying the person for future.
CU Singh, Senior Advocate, Supreme Court

It was a very frustrating process for the people concerned as it wouldn't yield results except years later. And so the current action by the EC is an evolution of its powers, necessitated by the delays caused in courts, Singh explained.

Sheo Narayan Singh, former dean of faculty of law at Delhi University, agreed. While it's true the model code of conduct is a mere agreement between parties on guidelines for elections and doesn't have a statutory backing, the commission still enjoys powers from other laws to act, he said.

The code of conduct are guidelines which parties agree to follow. Over time, some provisions of the Representation of People’s Act have found their way in the model code of conduct such as the ones barring corrupt practices like seeking votes on grounds of religion and thus are liable to be penalised by the commission.
Sheo Narayan Singh, Former Dean of Faculty of Law, Delhi University

Two years ago, the Supreme Court had expressly banned communal speeches or speeches seeking votes on ground of religion. And the court has made it clear that such speeches do not enjoy the protection under Right to Freedom of Speech, Singh added.

But despite the ban, there have been politicians who have found ways to circumvent the ban and therefore there is need for even stricter action by the commission, Singh pointed out.

For instance, Bajrang Bali made a strategic comeback in Yogi Adityanath’s visit in Lucknow—not pitted against Ali this time, as Adityanath decided to recite the Hanuman Chalisa at Hanuman Setu temple.