The Lede
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Chief Election Commissioner Sunil Arora
Chief Election Commissioner Sunil Arora|Courtesy: Wikipedia
2019 Polls

Has The ECI Been ‘Biased’ Or ‘Inefficient’?

With the Opposition crying hoarse over the past six weeks, The Lede takes stock of what the Election Commission has done right & done wrong

Jeff Joseph

Jeff Joseph

With a delegation comprising 22 Opposition parties meeting Election Commission of India officials in New Delhi today, tensions were high. The main charge against the ruling party and the Commission itself was that of EVMs (Electronic Voting Machines) being either “taken away” illegally or “fake EVMs” replacing real ones.

The Opposition parties made a Powerpoint presentation to the ECI.

At the heart of the controversy surrounding the Election Commission of India today, is the technical question as to whether minority views should be recorded in the minutes of a meeting. But this has not been the only reason why the ECI and its decisions have come under the scanner this election.

At a time when the larger-than-life imagery of Prime Minister Modi and BJP President Amit Shah have been hogging centre stage, the ECI has “appeared weak” apparently because it is busy with the conduct of the elections.

At the start of the campaign in April, 66 former civil servants had written to the President, expressing their distress at misuse, abuse and blatant disregard for the Model Code of Conduct (MCC). They alleged that the ECI had been “weak-kneed” in dealing with the ruling party.

This was in the backdrop of the clearance that the ECI had given to Modi’s address to the nation on the successful test-firing of an anti-satellite missile on 27 March, after the Model Code had kicked in.

The Commission had opined that the speech did not violate the Model Code in letter, “but we can’t say it about the spirit of the code.”

Inaction On Complaints For Violation Of MCC

Given that there is little that violation of MCC brings in terms of punitive possibilities, it is a hard area for the ECI to deal with.

On April 15, the ECI was ticked off for inaction by the Supreme Court while dealing with a writ petition seeking strict actions against political parties who drag religion and caste in political campaigns. The Commission as much as submitted that it was “powerless” when it came to MCC violations such as hate speech and communal remarks in election campaigns.

The ECI though found its lost powers the very same day after a dressing down from the Supreme Court. The Commission censured Uttar Pradesh Chief Minister Yogi Adityanath and Bahujan Samaj Party chief Mayawati for making communal remarks, barring them from campaigning for 48 hours and 72 hours respectively.

It also pulled up Union Minister and BJP candidate from Sultanpur Lok Sabha constituency Maneka Sanjay Gandhi and Samajwadi Party leader Azam Khan.

Chief Justice of India Ranjan Gogoi said addressing the ECI the next day - “Seems you have got your powers now.”

The ECI told him - “We found we have several powers.”

“So, ECI has woken up to its powers,” retorted the Chief Justice.

No Action On Modi

The first Congress complaint against Modi’s speech at an election rally was received by the Commission on April 05. And for the next 25 days no action was taken. No meetings were held to dispose of the complaint, no clarifications issued.

There was a lot at stake here. Under scanner were complaints against the sitting Prime Minister and Amit Shah the party President of the ruling party. To be seen as fair called for prompt disposal of the complaints.

The ECI appeared “ostrich headed” to some and “pliant” to others. Any which way one looks at it, the Commission would have been better served with pro-activeness.

Again the matter came to the Supreme Court, when on 29 April, the Congress’ Abhishek Manu Singhvi, appearing for incumbent Silchar MP and Congress leader Sushmita Dev, mentioned a plea before a bench headed by CJI Gogoi about the inaction on the part of the Commission over the Congress’ complaint. The court scheduled a hearing on the same for the next day.

At a press conference held in the evening the same day, Deputy Election Commissioner Chandra Bhushan Kumar told reporters that the complaints regarding Modi, Shah and Rahul Gandhi will be decided the very next day i.e., April 30. It seemed that the ECI needed Supreme Court prodding to take action.

But it was to later emerge that there was indeed initiative within the Commission to decide on MCC violation complaints promptly, which though wasn’t followed up diligently.

Election Commissioner Ashok Lavasa claimed that he had sought to intervene and seek “transparent and time-bound” disposal of Model Code of Conduct (MCC) complaints on 18 April, three days after the ECI was pulled up by the Supreme Court. This was to lead the ECI to the present controversy brewing within.

On May 16, almost a month later, Lavasa recused himself from meetings on MCC violations in protest over inaction on his suggestions and his minority decisions going unrecorded in the Commission’s final orders.

Clean Chits To Modi & Minority Views Not Being Recorded

Lavasa it later emerged, had differed with the majority view in five different complaints of violation of the MCC against Prime Minister Narendra Modi and BJP chief Amit Shah. Of these, four pertained to the PM. But none of his opposing views were recorded. The information was leaked to the media.

Former Chief Election Commissioners (CEC) claim that there has been no practice which necessitated recording minority views. But as former CEC TS Krishnamoorthy opined, “there is no harm in recording them.”

“If CEC has decided not to, it is for them to explain why,” he added.

“Minority views have been hitherto unrecorded,” Naresh Gupta, former Chief Electoral Officer of Tamil Nadu told The Lede.

“To be adamant on never uploading the minority decisions may not be the right thing to do,” K Venkataraman, senior journalist and political analyst told The Lede. “That is something the Commission has to look into.”

Seen in the backdrop of the clean chits to Modi, it was probably not the wisest thing to do. Justice was being denied, cried the Opposition who called the ECI’s behaviour “biased”.

The Six Phase Marathon

Criticism also arose about the six phases of elections which stretched over five weeks.

“Even if the elections are held in a single phase as per the rules laid down, it will take 35-37 days,” said N Gopalaswami, former CEC who was at the helm from 2006 to 2009. “If all the parties promise to fight without resorting to malpractice and violence it could be possible,” he said when questioned about single phase polls.

“It is desirable to have it in four phases,” said TS Krishnamoorthy, who was CEC from 2004 to 2005. “But it depends on availability of paramilitary forces.”

Despite the six phases, there were instances of violence and need for re-polling.

The Bengal Mix-Up In The End

The election campaign in Bengal was at its peak when the ECI’s order brought it to a standstill albeit with a rider - the campaign was to be curtailed a day short, but not immediately.

It invoked Article 324 of the Constitution to ban campaigning from 10 pm on May 17. Questions were raised once again about the ECI’s neutrality.

“If situation in Bengal is so severe that campaigning must be stopped, why is EC waiting until tomorrow? Is it because PM has scheduled rallies tomorrow?” asked Ahmed Patel of the Congress. The insinuation again was again, at a “biased” ECI.

Whether there existed any bias or not, the ECI did not put to rest questions over its integrity or seek to negate conspiracy theories. Neither did it issue a clarification as to what its considerations were for not curtailing the campaigning immediately.

Curtailing Social Media: A Total Disaster

That this election would be fought on Facebook and WhatsApp was clear even before campaigning had begun. The IT cells of the two major parties were in top gear and unlike in 2014 when only the BJP was revving it up in the online space, the Congress too was now in the game.

Amit Malviya and Divya Spandana, social media warriors for the BJP and the Congress respectively, egged on their teams during the entire campaign. The ECI had, unlike in the past, worked with Facebook and Twitter this election to curb fake news and misuse of social media.

It had even specified guidelines for the use of social media during the elections. All candidates were required to provide details of their social media accounts to the Commission and to take prior approval for all political advertisements online. The Model Code of Conduct was expected to apply to all social media content as well.

All was well in theory. In practice, the game was on a different field altogether. The online warriors spreading din over the internet were never related to the candidate to start with and Facebook and its usage had reduced manifold this election, WhatsApp having taken over.

Although WhatsApp had imposed limits on the number of forwards possible, it was flouted openly by the IT cells of all parties as has been reported. Using illegal tools, self-developed or bought, political parties pushed messages in the thousands, unhindered and unfiltered.

All expenditure on campaign advertisements on social media would be added to the candidate’s expenditure, CEC Sunil Arora had said. But social media campaigning was being done predominantly at a party level and the Commission appears to have been oblivious to this.

The presence of many political consultancies with their own data teams pushing messages online and wedding them with on-ground campaigns and rallies, could not be controlled by the ECI either.

And Now… EVM Transportation And Insinuations

“Purely an internal matter of ECI & any speculation, innuendoes and insinuations should be eschewed” - this is how the three Election Commissioners argued away the controversy over Lavasa’s recusal from MCC-related meetings in protest of his minority views going unrecorded.

But as the Election Commission huddled together for a meeting to discuss Lavasa’s recusal and what the procedural approach towards minority views should be, Opposition parties were harping on their plans to meet the Commission in the backdrop of a flurry of videos which had floated online related to “illegal” movement of EVMs.

On Monday after exit polls suggested a return of NDA to power, many Opposition leaders had asked their cadre to not lose hope as the result could be different. The cadre were asked to guard the EVMs to ensure no foul play could occur.

On Tuesday morning rumours of “foul play” started doing the rounds, along with videos and messages on Twitter and WhatsApp.

Former President Pranab Mukherjee who had, a day ago, praised the ECI for conducting “perfect” elections in the history of India, thought it important enough an issue to ask the ECI to come forward and allay any apprehensions that were being expressed over the issue.

A statement from the former President of India Pranab Mukherjee
A statement from the former President of India Pranab Mukherjee
Courtesy: Pranab Mukherjee’s office

The ECI eventually came out with a statement and urged everyone to trust it.

Similar panic had already been witnessed in Tamil Nadu last week. Before the announcement of the re-poll, EVMs were moved from Coimbatore district to Pudukottai, as is regular practice. But conspiracy theories abounded and this should have been a warning for the ECI to be better prepared to prevent such rumours from spreading.

“When it came to decision making on MCC violations, the ECI has not lived up to its earlier reputation,” said K Venkataramanan, senior journalist and political analyst. “Communication too has definitely not been up to the mark. For instance complaints made before the ECI in the beginning of April were only looked into much later and no explanation has been given as to why this was done.”

“Allowing the appointment (of CECs) system to go on is at the root of the problem,” he continued. “Any perceived bias could be rooted out early if the appointment of the CEC requires a confirmation by the Senate or Parliament in India, as it happens in the US.”

Justice, as they say, should not just be done, but appear to be done as well.