A headline in The Indian Express on April 1 caught the attention of readers. It read: “Ex CECs: IT, ED actions against Opposition can disrupt level playing field in polls”. At least four former chief election commissioners, including me, (two of them anonymously), told the Express that “the recent actions of the Income Tax department and Enforcement Directorate against Opposition parties and their leaders have the potential to disrupt the level playing field during elections”.
According to the report, the two former poll panel chiefs who spoke on condition of anonymity said that such actions could be seen to be interfering with free and fair elections and should prompt the poll watchdog to at least meet the agencies to ascertain why tax demands and IT notices cannot wait until after elections are over. One of them said, “I personally feel that the EC can certainly put it on hold because it is affecting the level playing field.”
One ex commissioner said that if the tax agencies keep issuing notices to the principal Opposition party when campaigning is on, freeze their accounts and even debit money from them, it disturbs the playing field. According to him, the Commission should ask the CBDT for compelling reasons on why this cannot wait until after elections. The Commission cannot come in only if the matter involves national security, he said.
Another former CEC asked how you can expect a political party to contest an election when its access to funds is cut off. Does this not affect the level playing field? As an umpire in this match, the Commission cannot remain completely mute, and it will have to play a persuasive role by way of consultation or a meeting with central agencies to persuade them to defer actions such as raids and freezing of accounts and raising of tax demands till after the elections so that there is a semblance of a level playing field.
Within the EC, the principle that was always followed was that anything that can wait till the end of elections must wait. The question to ask is whether there would be any irreparable damage in postponing. In the present two cases — the arrest of two chief ministers and a barrage of IT notices, including freezing of the accounts of the main Opposition party — I see no irreparable damage if the actions were delayed till the end of the elections. On the contrary, irreparable damage is being done to the two affected parties by throttling their electoral campaign, physically and financially.
There is a precedent of the EC stepping in to tell the ED to act impartially during the last Lok Sabha elections in 2019. This was after the Opposition parties accused the ruling party of using central agencies against them. “The Election Commission would like to strongly advise that all enforcement actions during the election period… should be absolutely neutral, impartial and non-discriminatory,” said the 2019 advisory. Earlier, in 2009 too, the EC had issued a similar advisory to other regulatory agencies.
The EC is extremely reasonable in matters that affect public welfare. For instance, once the Ministry of Petroleum and Natural Gas wanted to announce a national reduction in petrol prices while elections were going on in some states. The EC, after due consideration, allowed this as being in the wider public interest, despite protest from a section of the Opposition that it would disturb the level playing field and give an advantage to the ruling party.
In another instance, when the government wanted to announce an increase in the minimum support price of some foodgrains to benefit the farmers, the EC disallowed it as the timing was suspect. Normally MSP is announced just before the sowing season so that farmers can decide what to grow. In this case, this was being cleverly done two months ahead of the normal practice.
Several such interventions by the Commission have now reduced misuse of office. Leaders and ministers are increasingly wary of even attempting it. The MCC is designed to ensure that the ruling party is not able to get undue advantage over others. A full chapter (Part VII) of the Code places restrictions on ruling parties and the government of the day. It stipulates that ministers shall not use official machinery or personnel during electioneering work, sanction grants/payments out of discretionary funds, announce or promise financial grants in any form, lay foundation stones for projects, make promises of projects like roads, water facilities etc, or make ad hoc appointments in government/public sector undertakings. This is necessary to strip the ruling party of its incumbency advantage that disturbs the level playing field.
While action under the MCC is generally limited to censure of or reprimand to an individual, the Commission may also write to political parties advising them to ensure that their members do not indulge in violations of the MCC. Such advice has sometimes also been issued to state governments if the budget sessions of their legislatures fall during the election period, to consider bringing in a “vote on account” instead of the regular budget so as not to infringe the MCC by introducing alluring schemes. The governments have always accepted this advice of the EC.
In May 2012, an unprecedented situation arose in Goa where a by-election was to take place. The MCC had come into operation when the EC received a representation alleging that the chief minister was planning to induct a probable candidate into the Council of Ministers prior to the election to an assembly constituency scheduled for June 2, 2012. The complaint was that this would disturb the level playing field as the voters would be swayed in favour of the new minister.
I sent a message to the then chief minister, Manohar Parrikar, to consider deferring the induction. The chief minister became agitated and called me to say that he had a constitutional right to constitute or expand his Council of Ministers at a time of his choosing. I clarified that he indeed had the full constitutional right to do so, yet I reiterated that it was just an “advice”. It was to the credit of Parrikar that not only did he accept the advice and defer the inclusion of the minister, but also remarked that he “bows to the moral authority of the Model Code of Conduct, which should take precedence over his constitutional right”.
This response was indeed statesmanlike. It is this spirit that strengthens the delicate constitutional arrangement between various authorities and parliamentary democracy, and which has put the Indian elections on the world map.
The writer is former Chief Election Commissioner of India and the author of India’s Experiment with Democracy — the Life of a Nation Through its Elections
It is this spirit that strengthens the delicate constitutional arrangement between authorities and parliamentary democracy
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03.04.2024
A headline in The Indian Express on April 1 caught the attention of readers. It read: “Ex CECs: IT, ED actions against Opposition can disrupt level playing field in polls”. At least four former chief election commissioners, including me, (two of them anonymously), told the Express that “the recent actions of the Income Tax department and Enforcement Directorate against Opposition parties and their leaders have the potential to disrupt the level playing field during elections”.
According to the report, the two former poll panel chiefs who spoke on condition of anonymity said that such actions could be seen to be interfering with free and fair elections and should prompt the poll watchdog to at least meet the agencies to ascertain why tax demands and IT notices cannot wait until after elections are over. One of them said, “I personally feel that the EC can certainly put it on hold because it is affecting the level playing field.”
One ex commissioner said that if the tax agencies keep issuing notices to the principal Opposition party when campaigning is on, freeze their accounts and even debit money from them, it disturbs the playing field. According to him, the Commission should ask the CBDT for compelling reasons on why this cannot wait until after elections. The Commission cannot come in only if the matter involves national security, he said.
Another former CEC asked how you can expect a political party to contest an election when its access to funds is cut off. Does this not affect the level playing field? As an umpire in this match, the Commission cannot remain completely mute, and it will have to play a persuasive role by way of consultation or........
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